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ANALYSIS OF A CONTRACTS
CASEBOOK
MARY JoE FRUG*
Like many other contracts instructors, I presently teach my course from Dawson, Harvey, and Henderson's contracts casebook.' This Essay is a feminist examination of that casebook. My objective is critical in character, for I believe a feminist analysis should change one's consciousness. However, I do not intend to deliver a diatribe against the casebook or its editors. Rather, I am writing this for the readers of other casebooks, as well as for readers of Dawson, Harvey, andHenderson, in the hope of accomplishing two goals. First, I want to demonstrate that readers' views about gender affect their under- standing of a law casebook. Second, I want to demonstrate that gendered aspects of a casebook affect readers' understanding of the law and of themselves. If these endeavors are successful, I hope that casebook readers will be liberated from some of their opinions about gender, opinions that casebooks foster and sustain. Indeed, this Essay is designed to contribute to the feminist effort to diminish the power that ideas about gender exercise over our lives. I also hope, somewhat paradoxically, that exposing and examining gender in a casebook will liberate and vitalize qualities within readers, as well as approaches to contract doctrine, that are currently linked with women.
My plan is to use the first section to discuss the nature and value
*Professor of Law, New England School of Law. Although the responsibility for any errors that follow is mine alone, I have received enormous help and encouragement from others in this Essay. I thank Nadine Taub and Nancy Erickson for inspiring the topic of this Essay by their efforts to organize women law teachers to eliminate sex bias in casebooks, and I thank friends in the Critical Legal Studies Conference for their enthusiasm and their assist- ance during workshops at the Gloucester summer camp and the CLS Feminist Conference at Pine Manor and in "femcrit" and "lit crit" study groups over the past two years. I am espe- cially grateful to Betsy Bartholet, Clare Dalton, Karl Klare, Martha Minow, and Fran Olsen for their suggestions, and to Jerry FrugJudi Greenberg, and Duncan Kennedy for their generous rereadings.
1.J. DAWSON, W. HARvEY & S. HENDERSON, CASES AND COMMENT ON CorrRArs (4th ed. 1982) [hereinafter cited asJ. DAWSON].
1065
1066 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065
of a feminist analysis of a contracts casebook. I will also describe a variety of possible casebook readers in order to create a shared sense of readers and their attitudes toward gender. In the second section, I will undertake an overview of Dawson, Harvey, and Hender-
son, examining both how women are treated in the casebook and the "maleness" of the casebook. In the third section, I will combine and
elaborate some of the approaches used in the overview section by considering two individual cases. Finally, in the conclusion, I will return to the goals I have described here.
I.INTRODUCTORY EXPLANATION
The analysis of Dawson, Harvey, andHenderson which follows is pri- marily concerned with the power of gender in the casebook. It is this focus on gender that makes me claim my analysis is feminist. I use "gender" to mean the reductive, dualistic classification of a wide array of social and psychological characteristics according to biolog- ical sex. Gender has power because we use it as a category to explain differences among individuals; it is an idea that organizes and colors many of our responses to
2.For two Essays that elaborated this idea for me, see M. FOUCAULT, Two Lectures, in
POWER/KNOWLEDGE 78 (1980) and Griffin, The Way ofAll Ideology, in FEMINIST THEORY: A CR- TIQUE OF IDEOLOGY 273 (N. Keohane, M. Rosaldo &B. Gelpi eds. 1982).
3.For all of these reasons, some form of gender exploration is a major characteristic of feminist work. Feminists differ from one another in the ways they explore gender and in the significance the focus on gender has in their work. For many, feminist analysis consists of studying the social and psychological construction of the differences between men and wo- men. Some of these scholars want to learn why more women than men take primary care of
children. See, e.g., N. CHODORow, THE REPRODUCTION OF MOTHERING: PSYCHOANALYSIS AND
THE SOCIOLOGY OF GENDER (1978); D. DINNERSTEIN, THE MERMAID AND THE MINOTAUR: SEX-
UAL ARRANGEMENTS AND HuMAN MALAISE (1976). Others want to learn why housework is so dramatically undervalued. See, e.g., Gardiner, Womens Domestic Labor, in CAPITALIST PATh-
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I also claim my analysis of this casebook is feminist because of my oppositional stance toward gender. Some individuals who explore and analyze gender characteristics implicitly subscribe to that aspect of gendered thinking that privileges "male" traits over those gener- ally thought to be female.4 I maintain, however, that a
ARCHY AND THE CASE FOR SOCIALIST FEMINISM 173 (Z. Eisenstein ed. 1979); FEMINISM AND
MATERIAUSM: WOMEN AND MODES OF PRODUCION (A. Kuhn & A. Wolpe eds. 1978). Still others want to learn why the objectification of women's sexuality takes the particular, violent
form it takes in some kinds of pornography. See, e.g., A. DwoRKIN, WOMAN HATING (1974); Benjamin, The Bonds ofLove: RationalViolence andEroticDomination, in THE FUTURE OF DIFFER- ENCE
My Essay is different from many of those I havejust described in that my primary focus is an examination of the gendered nature of a specific text. Rather than examining gender itself as a phenomenon, or using a
SIGNS: J. OF WOMEN IN CULTURE AND SOCIETY 515 (1982); Kolodny, Dancing Through the Minefteld, in THE NEw FEMINIST CRITICISM 144,
4.See, eg., S. FREUD, Some PsycologicalConsequences ofthe Anatomical Distinction Between the Sexes and Female Sexuality, in SEXUALTY AND THE PSYCHOLOGY Or LovE,
5.C. CHRIST, DIVING DEEP AND SURFACING
6.Joan Kelly's Essay discussing the shift in feminist theory away from dualistic analyses is useful in pursuing this point. See Kelly, The Doubledleion of FeministTheory, in WOMEN, HIS- TORY & THEORY
1068 THE AMERiCAN UNIVERSrrY LAW REviEW [Vol. 34:1065
mined and immutable,7 I believe that the act of focusing on gender should be oppositional; it should change the effect of gender on a writer and her readers by unsettling those ideas in their
consciousnesses. 8
I have identified my Essay as a feminist analysis with some reser- vations. I recognize that the feminist label may seem uninviting to certain readers, and I do not want to lose those readers preemptorily. Moreover, I believe that the creativity, flexibility, and subordinated opposition that women's life experiences often de- mand and cultivate are important to the constitution of feminism.9 I do not want a "feminist" label for this project to jeopardize claims that differing analyses are also feminist.1P Nevertheless,*calling my analysis "feminist" seems desirable as a way to distinguish my pro- ject from the task of eliminating overt sexism in a book. I fear that "eliminating overt sexism" could seem limited to rooting out in- stances of pejorative, demeaning treatment of women in casebooks, and that would not accurately describe my Essay. While I believe eliminating that kind of sexism in books is an important and chal-
lenging enterprise, 1 II concede at the outset that Dawson, Harvey, and
7.See L. DAVIDSON & L. GORDON, THE SOCIOLOGY OF GENDER
BEAUVOIR, THE SECOND SEX
8.This claim is similar to that made by feminist literary critics regarding their work, see
J. FETERLEY, supra note 3, at
Robert Gordon's description of Critical Legal Studies scholarship. See Gordon, CriticalLegal Histories,36 STAN. L. REV. 57,
9.For examples of feminist writing that can inform this definition of feminism, seeJ.
MILLER, TOWARD A NEW PSYCHOLOGY OF WOMEN (1976); Minow, supra note 3; Leahy, supra
note 6.
10.Cf. Kolodny, DancingThrough the Minefle!4 in THE NEw FEMINIST CRITICISM 144, 159- 63 (E. Showalter ed. 1985). The embrace of diversity implied here is similar to Annette Ko- lodny's normative description of feminist literary criticism as pluralistic. Id I think Kolodny's use of "pluralistic" is an unfortunate choice of adjective, however. Pluralism as commonly
understood is not what I understand her to be saying, and it's not what I mean in suggesting that analyses which differ from mine may also be feminist. I think there is some "there" in feminism, not just anything goes.
11.For examples of this effort undertaken outside legal education, see Gappa, SEX AND
GENDER INTHE SOCIAL SCIENCES (1980) (produced under grant from Women's Educational
Equity Act Program, United States Department of Education); Ruth, Methodocracy, Misogyny and Bad Faith: The Response of Philosophy, in MEN'S STUDIES MODIFIED: THE IMPACT OF FEMI- NISM ON THE ACADEMIC DISCIPLINES (D. Spender ed. 1981). Efforts to eliminate overt sexism are now underway within legal education as well. Nancy S. Erickson at the Ohio State Univer- sity College of Law was awarded an Ohio State University Affirmative Action grant for the
The study proceeded in three concurrent steps: a review of major casebooks currently be. ing used in the
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FEMINIST ANALYSIS OF A CASEBOOK |
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Henderson seems cleansed of any gratuitously negative comments about women. But I believe editors could conscientiously eliminate all instances of female degradation in their casebooks and still pro- duce books that would affect readers' views about gender and that would be subject to multiple interpretations because of readers' gender attitudes. A "feminist" casebook analysis will be useful, therefore, as long as the concept of gender has any meaningful content.' 2
Thus far I have discussed the significance that the power of gen- der has for my Essay. However, since my subject is the relationship between gender and a casebook, my analysis of Dawson, Harvey, and Henderson also depends on several assumptions about casebooks which I should state. I do not believe that a casebook is simply a neutral reflection of what students need to know to practice law, to pass the bar, to think like lawyers, or to become law teachers. I maintain that, even within the constraints of professional neces- sity,' 3 editors have a wide range of choice in their case selections, their comments, their notes, their problems, and their questions, and the choices they make are not inevitable. The choices could be different and, indeed, choices about content do differ among casebooks within particular subject areas. I also believe that a casebook is a powerful document. The editorial choices within a casebook determine how many readers think about the law of a doc- trinal area, about lawyering in that field, about clients, and about legal reasoning. (Indeed, since Dawson, Harvey, and Henderson may be one of only five books a first year student reads in a given year, its influence over students' views may extend beyond the "profes- sional" concerns just listed.) Because a casebook has such power, and because its contents are subject to editorial choice, analyzing the biases of a particular casebook could challenge the effect of the casebook on its readers.
Despite my position that casebook editors are responsible for cre-
this project focused on eliminating sex bias in the criminal law casebooks, it also overlapped with aspects of my project. Moreover, any effort to eliminate overt sexism will require femi- nist analysis as I have broadly defined it here, and I hope my work will further such pursuits.
12.I agree with Catharine MacKinnon's eloquent claim that "the male point of view [is] fundamental to the male power to create the world in its own image." MacKinnon, Feminism, Marxism, Method,and the State: TowardFeministJurisprudence,8 SIGNS: J. oF WOMEN IN CULTURE AND Soci ry 635, 640 (1983). As long as our ideas about gender permit us to divide our views dualistically between male and female viewpoints, gender will continue to profoundly influence the nature of our lives.
13.I do not think that "professional necessity" is any more determinate than I suggest the contents of a casebook need to be. I use the phrase here, however, simply to acknowledge that there are some (arguable) limits within which a casebook editor functions in selecting the contents ofa casebook which is to be used for legal education.
1070 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065
ating works of significant power over readers, I do not believe that casebooks are frozen artifacts. I believe, with Stanley Fish, that "lin- guistic and textual facts, rather than being the objects of interpreta- dons are its products."14 Readers cannot fully screen themselves out of their reading and interpretation, just as they are unable to ignore the social and institutional setting in which a casebook is read. Think, for example, of how differently one might interpret Dawson, Harvey, and Henderson by reading it along with Patrick Atiyah's Rise andFallof Freedom of Contract15 rather than with Legalines. Since I be- lieve readers have a significant role in creating the meaning of a casebook, I want at this point to introduce my impressions of a group of typical casebook readers. I hope that by drawing portraits of a variety of individuals who read casebooks I can convince my readers that singular interpretations of Dawson, Harvey, and Hender- son are unlikely. My portraits of casebook readers concentrate al- most entirely on the readers' attitudes toward gender, in order to broaden and deepen our shared views about the content of gender. By using these portraits later in the Essay I hope to convince you that I am not the only reader of Dawson, Harvey, andHenderson with a gendered perspective, and I also hope these portraits will remind you of your own ideas about gender.16
The readers I have created are fictional; indeed, they may not avoid seeming stereotyped. Nevertheless, I believe they resemble students and colleagues I have known in twelve years of law teach- ing, and, while you may not see yourself as any one reader, you may see parts of yourself in more than one. Because I will refer to these examples of readers later in the Essay, I am giving them taglines for names.
The Feminist
Whether this reader is male or female, he or she is a
14.S. FISH, Is THERE A TEXT iN THIS CLAss?: THE AuTHORrry OF INTERPRETIVE COMMU-
NrrIES 9 (1980) (emphasis added).
15.P. AnYAH, RISE AND FALL OF FREEDOM OF CoNTRAcr (1979).
16.It may seem paradoxical to seek to further our understanding of the content of gen-
der when my stated objective is to "diminish the power that ideas about gender exercise over our lives." However, because I think that gender distinctions are nurtured and perpetuated by their continuing impact on our consciousnesses, I believe that we cannot diminish their power without first exposing them and discussing the effect they have on us.
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FEMINIST ANALYSIS OF A CASEBOOK |
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been resisted. They also believe that the construction of gender has locked many men into sex roles that uncomfortably restrict them. Gender is on this reader's mind; she notices how many women are in a room, how many speak, and who listens when they do. She has special knowledge about women and their concerns, the way some people know a lot about the Civil War, about jazz, or the history of baseball. This reader might chide me for making such comparisons, however, for The Feminist can be quite
The
A modified version of The Feminist is the woman whose experi- ence as a wife and mother has altered her career. She is acutely conscious that the majority of male students and faculty members have not had to substantially modify their work lives for the sake of their spouses or their children. Having needed other women's help in her family work, where carpooling, childcare exchange, and nurs- ery school cooperatives require a high degree of cooperation, relia- bility and trust, she tends to see women students and faculty members as friends and allies. She may not identify herself as a feminist, in part because she fears that might alienate her from her family and her old friends, but because she continues to take care of other people as an additional,
The Reader with a Chip on the Shoulder
The female version of this reader is angry at men, perhaps be- cause of some mistreatment she has suffered, or perhaps because of her empathy for other women who have suffered mistreatment on account of sex. Because anger is often repellant, one may attribute a paranoid personality style to this reader. She seems to be con- stantly looking for clues that women will be denied justice in law school, as they have been elsewhere. If this reader is a student, she is vigilantly examining her instructors or the casebooks they have chosen for any indication she can find of prejudice against women. As a faculty member she is likely to have her colleagues and her casebooks under steady surveillance for sexist offenses. This reader may not, however, make herself known to individuals whom she
1072 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065
considers unsympathetic. She can be very isolated in the law school setting.
The male version of this reader is angry at women. For many rea- sons he resents the women in law school, whether they are students or teachers; he sees them as threats to a system of male dominance that he supports. Faculty members of this type are clever about masking their anger, at least around
The Innocent Gentleman
This casebook reader also sees law school women as a challenge to his view of a male dominated world, but he is more bewildered than angry about their presence. He may never have seen his father drink a glass of water his mother didn't pour, and he does not un- derstand how to treat women as colleagues and authority figures. Must he, or can he, compete with them? What about sexual relation- ships; how can he understand such people other than as sexual ob- jects? He may be searching his classes and his casebooks for evidence about the truth of a world view where women have more restricted roles than they have in the law school setting.
The Reader Who is Undressedfor Success
Whether these casebook readers are male or female, their primary characteristic regarding gender is insecurity about their ability to conform to a popular image of "lawyers," which they understand as masculine, not feminine. They fear that successful lawyers are ana- lytical, rather than emotional; adversarial, rather than cooperative; certain, not tentative; ambitious, not flexible. They do not identify with Paul Newman in "The Verdict," Professor Kingsfield in "The Paper Chase," of even the elegantly tough Katharine Hepburn in "Adam's Rib," and they have grave doubts that their (purportedly) masculine traits are sufficiently dominant to allow them to succeed in law school, as students or faculty members. Whether they read the casebook to find evidence to confirm their fears, or to dispel
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FEMINIST ANALYSIS OF A CASEBOOK |
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them, they are very sensitive about gender questions in their casebooks.
The Individualist
These readers are assertive, conscientious students and faculty members who have modelled themselves after men and women who have succeeded in the public world. Because they have seldom met an obstacle they have not been able to overcome, they are suspi- cious of claims that membership in a group can handicap a person, regardless of individual merit. Some of these readers conduct their lives quite
The Civil Libertarian
Because of their general political stance as individuals who favor civil liberties and rights for the oppressed, these readers are likely to oppose invidious discrimination against women. Indeed, some of these readers may have been interested in feminism at some time, particularly during the late sixties and the early seventies. However, these readers are currently committed to other causes, such as op- position to racism, the elimination of hunger, and the antinuclear movement. Whether they genuinely believe that the oppression of women is less significant than it used to be, or whether they simply believe that other oppression deserves a superior claim to their at- tention, they prefer to avoid noticing gender in the casebook.
The UndeservingMale or Female Reader
Like the Reader who is Undressed for Success, these readers are also insecure about their abilities to succeed in law school, as stu- dents or faculty members. Because they have had good luck, well- placed connections, or ample money in their lives, they may fear that they do not deserve the positions and opportunities that have come their way. Unlike the Individualists, these readers are not in- sensitive to the effects group membership can have on an individual. Noticing gender in the casebook, however, unacceptably reminds both the Undeserving Male and Female about the backs they have
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THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065 |
walked over. The Undeserving Female, whose gender may have given her a boost she feels she was unworthy to receive, wishes to avoid hard questions, like affirmative action, which noticing gender might provoke.
Before turning to Dawson, Harvey, and Henderson, let me acknowl- edge again that casebook readers are much more complicated than I have presented them. Many people may not consciously notice gen- der at all, while many others may combine attitudes and personality traits which I have divided among the types I have drawn. Because the sketches are brief, and because they concentrate almost entirely on the readers' attitudes toward gender, these readers seem one di- mensional and more like caricatures than I want them to. But I be- lieve that any discussion of the choices the editors have made in creating this casebook requires a shared sense of variety of casebook readers; the character sketches are necessary, in my view, to under- score the variety of readers' attitudes concerning gender.
II.AN OVERVIEW OF THE CASEBOOK:
By segregating social and psychological characteristics into two categories and linking those categories to one sex or the other, our ideas about gender constrain our beliefs about what kinds of work men and women can do, what their interests are, how they can act, and how they can feel. In addition, because traits commonly identi- fied as male are generally more highly valued than characteristics associated with women, our ideas about gender have a constituting effect on the continuing imbalance of power between men and wo- men. For example, because "men's" work is considered more im- portant than "women's" work, and "male" analytical skills are more valued than "female" intuition, women who choose a conventional woman's job and exhibit common feminine attributes are likely to have less respect (from women as well as men),17 less power, and less moneyI8 than women who are more masculine in manner and occupation. I believe that Dawson, Harvey, and Henderson strongly
17.J. Russ, MAGIC MOMMAS, TREMBLING SISTERS, PURITANS AND PERVERTS: FEMINIST ES-
SAYS (1985).
18.Department of Labor reports indicate that women earn only 597 as much as men. WOMEN'S BuREAu, OFFICE OF THE SECRETARY, U.S. DEP'T OF LABOR, THE EARNINGS GAP BE- TWEEN WOMEN AND MEN 6 (1979) (table 1). This discrepancy has been linked to the underval- uation of the kinds of work women do. See Blumrosen, Wage Discrimination,Job Segregation, and Title VH ofthe Civil Rights Act of 1964, 12 U. MicH.J. L. REFORM 397, 421 (1979); Note, Equal
Pay for Comparable Worth, 15 HARV.
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FEMINIST ANALYSIS OF A CASEBOOK |
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supports this ideology of gender, and my primary objective in this section is to expose how the casebook functions to sustain and fur- ther these
I have chosen to begin with an overview of the casebook because, for many of my readers, the casebook's relationship to ideas about gender may seem apparent only after a cumulative description of the gendered aspects of many different facets of the book. This will be particularly true, I think, for readers who are unaccustomed to noticing
In providing an overview of the book, I pursue two different kinds of discussion. In the first part, my analysis proceeds from concrete questions regarding women. I look at women as "characters" in the cases, among the "authors" whose decisions or legal commentary the editors have included in the book, and in the language of the book.20 Most appellate decisions allow one to learn something about the people who are parties in the cases, such as what their jobs are, what activities they undertake that lead to litigation, and occasionally what their characters are like. Judicial descriptions of parties do not, however, stand alone in a casebook. Just as editors are responsible for choosing the cases readers read, they also influ- ence readers' views about the parties in the cases by the comments, elaborations, or questions they include with the decisions. Indeed, as I will show, readers can also interpret the significance of editorial silence about the parties. In addition, readers' views about people in a case will be affected by the people in neighboring cases, so that editorial organization will trigger readers' views regarding gender. Thus, I also observe the effect of the editorial arrangement of wo- men's cases. In this part I shall look at men primarily as a gauge by which to evaluate the treatment of women.
In the second part, my focus shifts to comparisons between ab- stract characteristics which we commonly attribute to men and char- acteristics of the casebook. I shall concentrate, in other words, on the analytical, autonomous, abstract, and neutral qualities of the book. Because the book does not exhibit many characteristics com-
19.In contrast, other readers, readers who identify with The Feminist and the Reader with a Chip on her Shoulder, are likely to realize the casebook's support for the ideology of gender immediately upon learning that the concept of the reasonable man is utilized in the first case in the book as a standard by which to judge the "objective" interpretation of con- tractual language. See Hawkins v. McGee, 84 N.H. 114, 115, 146 A. 641, 643 (1929), excerpted inJ.DAwsoN, supra note 1, at 1, 2.
20.This approach is similar to the first "moment" or stage of feminist literary criticism which K. Ruthven describes as "dismantling androcentric assumptions." K. RUThVEN, supra
note 3, at
1076 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065
monly characterized as feminine (such as sentimentality, earthiness, and compassion), I use women in this part primarily as a way of un- derstanding what is not womanly. My aim in this second part is to reveal the gendered aspects of the book which do not directly per- tain to women. 2' Although I am describing the
A.The Casebook Treatment of Women
1.Women as characters
There are substantially fewer women than men among the parties in Dawson, Harvey, and Henderson's cases. Only
183major cases in the casebook contain women.2 2 Men, therefore,
21.Although the first part focuses on women as characters and the second on male char- acteristics, the first part will implicate the casebook treatment ofmen as characters,just as the second will implicate female characteristics. In the conclusion I will discuss the implications of this approach for contesting gender in the casebook. See infra note 221 and accompanying text.
22.The major cases in the book that involve parties who are women are: Williams v.
474P.2d 689, 89 Cal. Rptr. 737 (1970), excerpted inJ. DAWSON, supra note 1, at 46; Heyer v.
Flaig, 70 Cal.2d 223,449 P.2d 161,74 Cal. Rptr. 225 (1969), excerpted inJ. DAwsoN, supra note 1,at 896; Davis v.Jacoby, I Cal.2d 370, 34 P.2d 1026 (1934), excerptedinJ. DAwsoN, supra note 1, at 316; Fairfield Credit Corp. v. Donnelly, 158 Conn. 543, 264 A.2d 547 (1969), excerpted in J. DAWSON, supra note I, at 946; Allied Van Lines, Inc. v. Bratton, 351 So.2d 344 (Fla. 1977), excerpted inJ.DAwsoN, supranote 1, at 448; Skendzel v. Marshall, 261 Ind. 226,301 N.E.2d 641 (1973), excerpted inJ.DAwsoN, supra note 1, at 681; Brackenbury v. Hodgkin, 116 Me. 399, 102
A.106 (1917), excerpted inJ. DAWSON, supranote 1, at 331; Hoffman v. Chapman, 182 Md. 208,
34 A.2d 438 (1943), excerpted inJ.DAWSON, supra note 1, at 410; Fitzpatrick v. Michael, 177 Md. 248, 9 A.2d 69 (1939), excerped inJ. DAWSON, supranote 1, at 128; Reigart v. Fisher, 149 Md. 336, 131 A. 568 (1925), excerpted inJ. DAWSON, supra note 1, at 848; Taylor v.
J.DAwsoN, supra note 1, at 469; Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d
69 (1960), excerpted inJ. DAWSON, supra note 1, at 461; Timko v. Useful Homes Corp., 114 N.J.
Eq. 433, 168 A. 824 (1933), excerpted inJ. DAwsoN, supra note 1, at 123; Cook v. Lum, 55 NJ.L. 373, 26 A. 803 (1893), excerpted in J. DAWsoN, supra note 1, at 919; Weisz v.
Galleries, Inc., 67 Misc.2d 1077, 325 N.Y.S.2d 576 (N.Y. Cir. Ct. 1971), rev'd, 77 Misc.2d 80, 351 N.Y.S.2d 911 (N.Y. App. Term. 1974), excerpted inJ. DAWSON, supranote 1, at 453; Cohen v. Kranz, 12 N.Y.2d 242, 189 N.E.2d 473, 238 N.Y.S.2d 928 (1963), excerpted inJ. DAWSON,
supra note 1, at 787; Mitchill v. Lath, 247 N.Y. 377, 160 N.E. 646 (1928), excerptedinJ. DAWSON,
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FEMINIST ANALYSIS OF A CASEBOOK |
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vastly outnumber women as "characters" in the book. Indeed, men not only monopolize the majority of the cases in which women do not appear but they also appear in most of the cases involving wo- men.23 Because Dawson, Harvey, and Henderson allow male parties to outnumber female parties so significantly, readers who notice gender differences are likely to be sensitive not only to the marginal representation of women in the casebook, but also to any sex role stereotyping within the decisions. Moreover, the cumulative im- pression provided by similarities among the women parties could provoke readers somewhat disinclined to notice gender to observe the casebook's links between women and ideas about gender.
a.Women's work
The most obvious commonality among the women parties is the narrow range of life situations in which they appear. Women, in this casebook, have legal problems arising from the limited activities typ-
supra note 1, at 426; Allegheny College v. National Chautauqua County Bank, 246 N.Y. 369, 159 N.E. 173 (1927), excerpted inJ.DAWSON, supranote 1, at 194; Seaver v. Ransom, 224 N.Y. 233, 120 N.E. 639 (1918), excerpted inJ. DAWSON, supra note 1, at 863; Wood v. Lucy, Lady
note 1, at 575; Funk v. Baird, 70 N.D. 396, 295 N.W. 87 (1940), excerpted inJ. DAWSON, supra note 1, at 916; Kabil Devs. Corp. v. Mignot, 279 Or. 151, 566 P.2d 505 (1977), excerpted inJ. DAWSON, supra note 1, at 269; East Providence Credit Union v. Geremia, 103 R.I. 597, 239 A.2d 725 (1968), excerpted inJ. DAWSON, supra note 1, at 203; Najarian v. Boyajian, 48 R.I. 213, 136 A. 767 (1927), excerpted inJ.DAwSoN, supranote 1, at 850; DeLeon v. Aldrete, 398 S.W.2d
160(rex. Civ. App. 1965), excerpted in J. DAWSON, supra note 1, at 114; Batsakis v. Demotsis,
226S.W.2d 673 (rex. Civ. App. 1949), excerpted inJ.DAWSON, supranote 1, at 165;Jackson v. Seymour, 193 Va. 735, 71 S.E.2d 181 (1952), excerpted in J. DAWSON, supra note 1, at 170; Hoffman v. Red Owl Stores, Inc., 26 Wis.2d 683, 133 N.W.2d 267 (1965), excerpted inJ.DAW- SON, supra note 1, at 355; Plante v.Jacobs, 10 Wis.2d 567, 103 N.W.2d 296 (1960), excerptedin
J.DAWSON, supra note 1, at 812.
23.Indeed, the figure of 39 women's cases is somewhat misleading because wbmen are coupled with their husbands in I1 of those cases and do not have a significant separate pres- ence as women. The 11 cases involving married couples are: Fairfield Credit Corp. v. Don- nelly, 158 Conn. 543, 264 A.2d 547 (1969), excerpted in J. DAWSON, supra note 1, at 946; Hoffman v. Chapman, 182 Md. 208,34 A.2d 438 (1943), excerptedinJ. DAWSON, supra note 1, at 410; Skelly Oil Co. v. Ashmore, 365 S.W.2d 582 (Mo. 1963), excerpted inJ. DAWSON, supra note
1, at 601; Ellsworth Dobbs, Inc. v.Johnson, 50 NJ. 528, 236 A.2d 843 (1967), excerpted in J. DAWSON, supra note 1, at 469; Henningsen v. Bloomfield Motors, Inc., 32 NJ. 358, 161 A.2d 69 (1960), excerpted inJ. DAWSON, supra note 1, at 461; Weisz v.
Term. 1974), excerptedinJ. DAWSON, supra note 1,at 453; Kabil Devs. Corp. v. Mignot, 279 Or. 151, 566 P.2d 505 (1977), excerpted inJ. DAWSON, supra note 1, at 269; East Providence Credit Union v. Geremia, 103 R.I. 597, 239 A.2d 725 (1968), excerpted inJ. DAWSON, supra note 1, at 203; DeLeon v. Aldrete, 398 S.W.2d 160 (rex. Civ. App. 1965), excerpted inJ. DAWSON, supra note 1, at 114; Hoffman v. Red Owl Stores, Inc., 26 Wis.2d 683, 133 N.W.2d 267 (1965),
excerpted inJ. DAWSON, supra note 1, at 355; Plante v.Jacobs, 10 Wis.2d 567, 103 N.W.2d 296 (1960), excerpted inJ. DAWSON, supranote 1, at 812. In addition, the woman involved in Hamer
v.Sidway is an assignee (and wife) of the nephew whose uncle promised him money for re- fraining from various activities; she is scarcely noticeable in the decision. Hamer v. Sidway, 124 N.Y. 538, 538, 27 N.E. 256, 256 (1891), excerpted inJ.DAwsoN, supra note 1, at 156.
1078 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065
ically associated with their sex, and the jobs they have are the most
stereotypical forms of women's work. Their disputes involve con-
tract problems arising from some experience in a family relation-
Outside family relationships, one can see a woman in this casebook having contract issues that arise only from such limited stereotypi- cally female roles as home purchaser,28 home seller,29 nurse,30 fash- ion designer,31 charitable benefactress,3 2
problems in Dawson, Harvey, and Henderson also stem from much
24.E.g., Skelly Oil Co. v. Ashmore, 365 S.W.2d 582 (Mo. 1963), excerpted inJ. DAWSON, supra note 1, at 601; Henningsen v. Bloomfield Motors, Inc., 32 NJ. 358, 161 A.2d 69 (1960), excerpted inJ. DAWSON, supranote 1, at 461; Weisz v.
25.Brackenbury v. Hodgkin, 116 Me. 399, 102 A. 106 (1917), excerpted in J. DAWSON, supra note 1, at 331.
26.Kirksey v. Kirksey, 8 Ala. 131 (1845), excerpted inJ. DAWSON, supra note 1, at 192.
27.Davis v.Jacoby, 1 Cal. 2d 370, 34 P.2d 1026 (1934), excerpted inJ. DAwsoN, supra note 1, at 316.
28.Hinson v. Jefferson, 287 N.C. 422, 215 S.E.2d 102 (1975), excerpted in J. DAwsoN, supra note I, at 575.
29.Gartrell v. Stafford, 12 Nev. 545, 11 N.W. 732 (1882), excerpted in J. DAwsoN, supra note 1, at 118.
30.Fitzpatrick v. Michael, 177 Md. 248, 9 A.2d 639 (1939), excerpted inJ. DAwsoN, supra note 1, at 128.
31.Wood v. Lucy, Lady
32.Allegheny College v. National Chautauqua County Bank, 246 N.Y. 369, 159 N.E. 173 (1927), excerpted inJ. DAwsON, supra note 1, at 194.
33.Parker v. Twentieth
34.Fischer v. Union Trust Co., 138 Mich. 612, 101 N.W. 852 (1904), excerpted inJ. DAW- soN, supra note 1, at 160.
35.Williams v.
36.See, e.g., Kirksey v. Kirksey, 8 Ala. 131 (1845)
37.Hoffman v. Chapman, 182 Md. 208,34 A.2d 438 (1943), excerpted inJ. DAwsoN, supra note 1, at 410.
38.Id.
39.Faber v. Sweet Style Manufacturing Corp., 40 Misc. 2d 212, 242 N.Y.S.2d 763 (N.Y. Sup. Ct. 1963), excerpted inJ. DAwsON, supra note 1, at 492.
40.Bright v. Ganas, 171 Md. 493, 189 A. 427 (1936) ("personal attendant and compan- ion"), excerpted in J. DAwsoN, Supra note 1, at 111.
1985]FEMINIST ANALYSIS OF A CASEBOOK1079
broader, more diverse situations, such as their work as a doctor,4 1 contractor, 42 farmer,43 miller,44 coal dealer,45 town commissioner,4 6
lumberman,47 deputy sheriff,48 sportscaster,49 prize fighter,50 engi- neer,51
One might object to the critical implications of the preceding ob- servations on the grounds that "life is, or has been, like that for
women; the cases which have been selected accurately reflect differ- ences between men and women in the real world." One might think that Dawson, Harvey, and Henderson's inclusion of a few cases in which women are successful entrepreneurs, such as the
fashion designer and the entertainer cases, 54 fully vindicates their
choices of cases involving women. The entrepreneurial cases not
only complement the cases in which women are engaged in stere- otypical activities but the diminutive number of such cases propor- tionately reflects the actual participation of women in the predominantly male world of business. Indeed, one might claim, including more cases in which women do untraditional things would deceive students about the actual status of women outside the
casebook milieu.
This argument strikes me as an ironic diversion. In fact, my im- pression is that casebook editors generally fail and seldom make much effort to select cases and materials on the basis of how accu-
41.Hawkins v. McGee, 84 N.H. 114, 146 A. 641 (1929), excerptedinj. DAwsON, supra note
1, at 1.
42.Drennan v. Star Paving Co., 51 Cal. 2d 409, 333 P.2d 757 (1958), excerpted inJ. DAw- SON, supra note 1, at 346.
43.Boone v. Coe, 153 Ky. 233, 154 S.W. 900 (1913), excerpted inJ. DAWSON, supra note 1,
at 92.
44.Hadley v. Baxendale, 9 Exch. 341 (Ex. 1854), excerpted inJ. DAwsoN, supra note 1, at
67.
45.Illinois Central Railroad Co. v. Crail, 281 U.S. 57 (1930), excerpted inJ. DAWsON, supra note 1, at 59.
46.Rockingham County v. Luten Bridge Co., 35 F.2d 301 (4th Cir. 1929), excerpted in J. DAwsoN, supra note 1, at 41.
47.Tanner v. Merrill, 108 Mich. 58, 65 N.W. 664 (1895), excerpted in J. DAwsON, supra note 1, at 541.
48.Denney v. Reppert, 432 S.W.2d 647 (Ky. 1968), excerpted inJ. DAwsON, supra note 1,
at 558.
49.American Broadcasting Companies, Inc. v. Wolf, 52 N.Y.2d 394, 420 N.E.2d 363, 438 N.Y.S.2d 482 (1981), excerpted inJ. DAwSON, supra note 1, at 667.
50.Chicago Coliseum Club v. Dempsey, 265 111. App. 542 (1932), excerpted inJ. DAWSON, supra note 1, at 81.
51.Southwest Engineering Co. v. Martin Tractor Co., 205 Kan. 684,473 P.2d 18 (1970), excerpted inJ. DAwsoN, supra note 1, at 290.
52.Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471,427 A.2d 385 (1980), excerpted in J. DAwsoN, supra note 1, at 254.
53.Clark v. West, 193 N.Y. 349, 86 N.E. 1 (1908), excerpted inJ. DAwsON, supra note 1, at
738.
54.See supra notes 31, 33.
1080 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065
rately they depict the "real world." 55 Moreover, the issue is not, I think, whether Dawson, Harvey, and Henderson could defend the cases they have chosen. Perhaps they could.5 6 What is important to me is the effect that their choices have on readers' views regarding gender. Read together, the cases in this book confirm, rather than challenge, the generalization that women and men mostly do differ- ent things, and that women's opportunities are drastically more lim- ited than men's. Most women who read the casebook do so to prepare for a career that historically has been predominantly male, and they may be concerned about the effect gender will have on their legal careers. Because almost all the women in the Dawson, Harvey, and Henderson cases do traditional "women's work," the casebook is likely to reinforce readers' fears (or fantasies) that, be- cause gender has been a factor linked to career choice and success in the past, it may inhibit their options in the future.
In addition to perpetuating readers' views about occupational dis- tinctions between women and men, cases in which women do tradi- tional women's work can pose pedagogical problems for casebook readers. Although women's work has not been highly regarded or fairly compensated historically, 57 relying on these views regarding
women's work in a decision may inadequately inform readers how to use the case in other situations. Fitzpatrickv. Michael58 is an example of a case in Dawson, Harvey, andHendersonin which a court's failure to appreciate women's work obscures the reasoning of the opinion.
Fitzpatrickinvolves the claim of a practical nurse for specific per- formance of her employer's agreement to employ her until he died and to leave her a substantial interest in his estate. In exchange, she was to remain with him until he died and provide such services as giving him company, managing his house, driving his car, and nurs- ing him when he was sick. The court declined to grant relief specifi- cally enforcing the contract or negatively preventing Mr. Michael from hiring anyone else, in part because the court was unconvinced
55.There are, of course, exceptions to this generalization. See, e.g., C.KNAPP, PROBLEMS
IN CoNTRACr LAw: CASES AND MATERIALS xxi (1976) ("no study of law is adequate if it loses sight of the fact that law operates first and lastjor,upon, and throughindividual human beings).
I.MAcNEn, CASES AND MATERIALS ON CONTRACTS, EXCHANGE TRANSACTIONS AND RELATION-
SHIPS xx (2d ed. 1978) ("The book contains a considerable amount of text, both original and
borrowed, devoted to putting the legal materials into the economic, social, financial and com- mercial contexts in which they occur.").
56.One might argue, however, that a certain lack of realism should be encouraged in a casebook in order to obtain the beneficial effect on readers of an idealized image of how editors think the world should be for women and men.
57.See supra notes
58.177 Md. 248, 9 A.2d 639 (1939), excerpted inJ. DAwsoN, supranote 1, at 128.
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FEMINIST ANALYSIS OF A CASEBOOK |
1081 |
that Ms. Fitzpatrick's services were sufficiently "rare and unusual" to warrant these extraordinary remedies:
[Her services] were varied, it is true, but they required no ex- traordinary or unusual skill, experience, or capacity. Under the employment, the appellant acted as a nurse, chauffeur, compan- ion, gardener, and housekeeper, and, while it may be difficult to appraise in monetary terms the value of services so varied, never- theless they involved no more than doing such things as a house- wife often does as a part of the ordinary routine of life.59
The court in Fitzpatrick dramatically devalued the kind of "wo- man's work" Ms. Fitzpatrick performed for Mr. Michael in conclud- ing that, because her services involved "no more" than things a "housewife often does," her work was not "rare and unusual." This judgment ignored the social significance of the kind of work women have traditionally done, thereby indicating that "women's" work is inferior to "men's.'" In addition to nourishing this idea about gen- der, however, the court's distorted treatment of "women's" work functions as an analytical shortcut in the opinion: by analogizing Ms. Fitzpatrick's work to a "housewife's" work, the court avoids ex- plaining why her services for Mr. Michael were not "rare and unu- sual." This avoidance is likely to prevent some readers from mastering the rules regarding specific enforcement of personal serv- ices. For example,
The Fitzpatrick opinion also pedagogically disserves readers who are undisposed to favor women. Readers who share the court's opinion that women's work is unimportant may be unwisely lulled by this opinion into believing that the law, like the labor market, generally devalues such services.6 0 Moreover, Dawson, Harvey, and
59.Id.at 259, 9 A.2d at 643, excerpted inJ. DAWSON, supra note 1, at 128, 131.
60.By providing that all income earned during marriage is marital property, the recently proposed Uniform Marital Property Act values the housework of a married woman who has no other source ofincome at half her wage earning spouse's income. See Unif.Marital Prop- erty Act § 4(d), 9A U.C.L.A. 19 (Supp. 1985). In the context of divorce, the nonmonetary contributions homemakers and parents make to their families have received increased recog- nition through state legislation passed since the early 1970s which provides that a home- maker's contribution to a marital unit may be or (in some states) should be considered when dividing marital property according to the equitable distribution systems now in effect in most
jurisdictions. See, e.g., LaRue v. LaRue, 304 S.E.2d 312,
ofDecember 1982, 9 [Current Developments] FAmILY LAw REP. (BNA) 4001 (Jan. 11, 1983). See
also Avner, Using the ConnecticutEqual RightsAmendment at Divorceto Protect Homemakers' Contribu-
1082 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065
Henderson make sure that at least some of these readers will be as unlikely to understand the rules regarding specific enforcement of personal services as the readers who support women's concerns. Although the court in Fitzpatrickasserts that a negative form of spe- cific enforcement is unavailable if personal services are "part of the ordinary routine of life," the editors place a note case immediately after Fitzpatrick involving a contract for personal services that is neg- atively enforced. 61 In this decision an appellate court temporarily enjoined a football player from playing for any team other than the Dallas Cowboys, pending the completion of a new trial on the plain- tiffs' claim against the player for breach of an agreement to play football exclusively for their assignor. By combining Fitzpatrickwith Dallas Cowboys, the editors present without apparent embarassment two opinions involving the "ordinary routine[s] of [American] life" in which judges assert that while nursing, housekeeping, and com- panionship are not unique services, playing football. . .ah, well, that's another matter.
Because of its failure to appreciate the uniqueness of "women's" work, the Fitzpatick opinion fails to dearly explain the prohibition against specific enforcement of personal services contracts. The prohibition could be clarified, however, by an interpretation of the decision that might occur to The Feminist, the
lions to theAcquisition ofMaritalProperty,4 U. BRIDME. L. REV. 265,
costs" standard (valuing the homemaker's work by determining either the cost of replacing
each ofthe various tasks she performed or by determining the costs ofprocuring a "substitute homemaker"), or by using a "lost opportunity costs" standard (valuing a homemaker's work
by equating it with the estimated value of the work she could have performed had she not worked in the home). See Yale, The Valuation ofHouseholdServices in WrongfulDeathActions, 84 U.
TooN'o UJ. 283,
61.Dallas Cowboys Football Club, Inc. v. Harris, 348 S.W.2d 37, 42.44 (rex. Civ. App.
1961), excerpted inJ. DAwsON, supra note 1, at 132, 132.
19851 |
FEMINIST ANALYSIS OF A CASEBOOK |
1083 |
way. Their rareness will depend on the relationship of the individu- als involved and the way they evaluate the quality of the work. Only by separating such services from the relationships in which they oc- cur and by dismissing their personal and social significance can their uniqueness be denied. Had the Fitzpatrickcourt been less influenced by traditional ideas about women and more sensitive to the value of personal services such as Ms. Fitzpatrick's, its refusal to award spe- cific performance could actually have been more persuasive.
Dawson, Harvey, and Henderson apparently rely on students or instructors to "save" Fitzpatrick. The editors run the risk, however, by placing Dallas Cowboys next to Fitzpatrick and by failing to com- ment on the sexism in the Fitzpatrick opinion, that the Fitzpatrick de- cision may only be effective in this casebook to perpetuate gender stereotypes about "women's" work.
b.Women's character
Moving from observations of what women in the casebook do and how their work is valued to what their characters are like, readers who notice gender issues will find women described in stereotypical and unflattering ways in Dawson, Harvey, and Henderson. Although the two major case studies included in this Essay are designed to illustrate the effect of such treatment in greater depth,6 2 I will briefly offer here the examples of two cases in which the characterization of the women could affect how readers view themselves and, in one instance, how they understand the law.
In Wood v. Lucy, Lady
62.See infra notes
63.222 N.Y. 88, 118 N.E. 214 (1917), excerpted inj. DAwsoN, supra note 1, at 231.
64.Shirley MacLaineJack Dempsey, and Hiram Walker are the other parties whose pho- tographs appear in the casebook. SeeJ. DIAwsoN,supra note 1, at 47, 82,87,563. Although the Hiram Walker case in the book involved the sale of a cow, Walker's picture is probably in- duded in the casebook because of his more
Relations Department, Hiram Walker & Sons, Ltd., Ontario, Canada to author (Aug. 13,1985)
(on file with author).
1084 THE AMERICAN UNIVERSITr LAW REVIEW [Vol. 34:1065
icance than if she were one of many businesswomen, some good, some bad, some in between. Her unique position in the casebook casts her character into prominence, particularly for those readers who are conscious of gender, and from several viewpoints Lady
Readers who have observed the phenomenal
Housekeeping Magazine, intriguingly states that Lady
Cardozo and the editors do not describe whatever talent, energy, or
imagination this woman may have had.6 6 Moreover, the decision's
treatment of her legal defense does not redeem the greedy fickle- ness that her breach of contract suggests. Instead, her claim that
the contract lacked mutuality of assent seems like a technical at- tempt to dodge responsibility in Cardozo's skillful exposition of the reasons for his decision against her. Thus, readers who are inclined to look to Lady
Other readers, who could be among The Feminist Readers or the female Readers with Chips on their Shoulders, might be offended that in one of the rare instances in this casebook in which a woman has a nondependent, untraditional career her work involves com- mercializing the personal appearance of women. These readers be- lieve the fashion industry exploits and degrades women, and they may feel belittled, angered, or disappointed that a woman with Lady
65.J. DAWSON, supra note 1, at 232.
66.In addition, Cardozo's wording might permit the female Reader with a Chip on her Shoulder to believe, in her paranoid mode, that the judge was skeptical about the reasons for Lady
judge's "what not" but also by the hint of contempt he displays for the public, which ascribed "new value... [to products she designed] when issued in her name." Id at 90, 118 N.E. at
214 (emphasis added), excerpted in J. DAwsoN, supra note 1, at 231, 231.
1985] |
FEMINIST ANALYSIS OF A CASEBOOK |
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Jackson v. Seymour,6 7 a case involving a woman's contract with her
brother for the sale of land, illustrates the casebook characterization of women who, unlike Lady
InJackson, LucyJackson, having sued her brother because he paid her considerably less for her land than it in fact was worth,69 man- ages to have the transaction set aside because of the parties' "confi- dential relationship." "The parties were brother and sister," the court explains. "He was a successful business man and she a widow in need of money." 70 Because the court inJackson does not elaborate its discussion of the parties' confidential relationship, and because it is unlikely that the decision rests solely on the biological relation- ship between the parties, the reader who seeks to understand the resolution of the case needs to develop the relationship between Mrs. Jackson and her brother more fully than the court has done.
Connecting the language of the case with typical, gendered ideas about what women and men were generally like in the 1950s, and before, a reader might construe Mrs.Jackson's confidential relation- ship with her brother in the following manner. Most women need to depend on one man or another in order to get along, and the
67.193 Va. 735, 71 S.E.2d 181 (1952), excerpted inJ. DAWSON, supra note 1, at 170.
68.Other cases in the book involving women who do not work outside the home also characterize the women, as this case does, as victims. See, e.g., Williams v.
Furniture Co., 350 F.2d 445 (D.C. Cir. 1965), excerpted in J. DAwsoN, supra note 1, at 697;
Brackenbury v. Hodgkin, 116 Me. 399, 102 A. 106 (1917), excerpted inJ. DAWSON, supranote 1, at 410. It is not clear whether the victimized women in other cases worked outside the home. See, eg., Kirksey v. Kirksey, 8 Ala. 131 (1845), ecerpted in J. DAwsoN, supra note 1, at 192; Reigart v. Fisher, 149 Md. 336, 131 A. 568 (1925), excerpted inJ. DAwSON, supra note 1, at 848; Batsakis v. Demotsis, 226 S.W.2d 673 (Tex. Civ. App. 1949), excerpted inJ. DAwsoN, supra note 1, at 165. The victimized stereotype is not the only unflattering stereotype readers can find in this casebook, however. For the cases in which women are characterized exclusively in terms of their dependency on their husbands, see supra note 23.
69.193 Va. 69 at 736,71 S.E.2d at 182, excerpted inJ. DAwsoN, supra note 1, at 170, 172. At the time of the purchase, neither he nor Mrs.Jackson knew that there was valuable timber on the land. Seymour cut and sold the timber, however, realizing a substantial amount of money which he did not share with his sister. Id.
70.Id. at 736, 71 S.E.2d at
1086 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065
court's description of Mrs. Jackson as a "widow," along with indica- tions of her poverty, and in contrast to her brother's economic suc- cess, suggest that Mrs.Jackson was shrouded with the entailments of emotional bereavement, vulnerability, and economic dependency. All of these characteristics, if they accurately described her situation, could have cast her into a relationship of dependence, trust, and confidence with her brother, in which she was weak and needy and he was strong and providing. This interpretation of Mrs. Jackson as victim simplifies the doctrinal issue in the case: a court will more closely scrutinize the terms of a contract on the grounds that it is based on a confidential relationship when one of the parties can be designated a weakling.
In contrast, if one shuns or does not recognize the stereotypically gendered idea that poor widows have usually been victims, the doc- trinal issue in the case is harder to resolve. Suppose, for example, that Mrs. Jackson was an emotionally vigorous woman whose wid- owhood was of so many years standing that she had long overcome the vulnerability she experienced when her husband died: or sup- pose that she was never so emotionally dependent on her husband that his death could affect her relationship with her brother. If neither party inJackson is obviously a weakling, the standards the court used to intervene in the parties' contract are harder to under- stand. We can conceive of a confidential relationship based on deep intimacy and shifting dependencies, particularly between a brother and sister. We can imagine a relationship in which Mrs.Jackson sus- tained her brother through the trials and tribulations of his business affairs while he offered her economic assistance and emotional sup- port when she needed help. However, overturning a contract based on this sort of confidential relationship would require more blatant judicial judgment calls than the objective theory of contract inter- pretation usually contemplates. 71 It is not surprising, therefore, that the court in Jackson appears to depend on our not thinking of Mrs. Jackson as a vigorous widow and vigilant sister. Rather, the court and the casebook editors (through their silence) count on our com- plicity in the more typically gendered view of the widow as victim.
I do not mean to suggest that emotional dependency, poverty, or bereaved feelings are unnatural or odious; indeed I believe a court should intervene to protect men and women when their vulnerabli- ties prevent them from making contract judgments in their best in-
71.For articles asserting an objective rather than subjective approach to interpreting the doctrine of mutual assent, see Costigan,
525,
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FEMINIST ANALYSIS OF A CASEBOOK |
1087 |
terests.7 2 My point about theJackson case is that the brevity of the court's reasoning and the words that the court uses to describe the parties encourage readers to think of Mrs. Jackson in the gender stereotype of the pitiful widow. However innocently, the opinion reinforces a restrictive view that men are strong and women are weak, and it uses that limiting idea as an analytical shortcut to avoid a challenging doctrinal problem.
Readers may wonder, reading this case, whether men who are weak can also obtain this kind of protection, or whether women who are strong cannot count on assistance of this sort. Indeed, readers could easily conclude from reading this case, along with Lady Duff- Gordon's, that women who remain in conventional sex roles are re- warded, while those who break away are not. Moreover, because the decision in Jackson implicitly relies on a restrictive way of thinking about what women are like, it particularly discourages readers from broadening their views about the possible ways men and women can act and feel. Instead,Jackson teaches readers that gendered thinking will contribute to their success as lawyers.
Ihope that the Lady
c.Women's silence
In addition to choosing cases in which women have limited occu- pations and constricted characterizations, Dawson, Harvey, and Henderson foster confining ideas about women and men by their silence about matters that are important to women. By omitting ma-
72.Cf Kennedy, Distributiveand PaternalistMotives in Contract and Tort Law, with Special Reference to Compulsory Terms and UnequalBargainingPower, 41 MD. L. REv. 563,
73.While this is my general impression of.the characterization of women in this casebook, there are cases in the book which do not conform to the generalization stated here. See, e.g., Bleecherv. Conte, 29 Cal. d 345, 626 P.2d 1051, 173 Cal. Rptr. 278 (1981), excerpted inJ.DAwsoN, supranote 1, at 660, in which Judge Rose Bird describes the defendant as "an experienced businesswoman involved in real estate transactions." Id at 345, 626 P.2d at 1052, 173 Cal. Rptr. at 278, excerpted in J. DAwsoN, supra note 1, at 660, 660. Although the defendant is unsuccessful in her legal claims, she has some dignity in judge Bird's treatment.
1088 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065
terial which is traditionally more closely linked to women and their experiences than to men, the editors perpetuate that aspect of gendered thinking which privileges "male" concerns. I will briefly discuss one case which illustrates two forms of editorial silence re- garding "women's" interests.
Crenshaw v. Williams,74 the fourth case in the casebook, is an exam- ple of a case in which both the opinion writer and the editors omit historical information, relevant to the case, that is of special signifi- cance to women. Crenshaw would be the first major case in the casebook in which a woman is a party, if the case had not been de- cided in Kentucky in 1921, before the 1942 amendments to that state's Married Women's Property Act.75 Although the case in- volved a contract for the sale of land that Mrs. Williams inherited from her father, her
Nothing in the casebook explains the problem of incapacity that state law imposed on Mrs. Williams, and other women, at the time of the lawsuit. This silence about the impact of common law re- straints on married women has two effects. First, it leaves Mrs. Wil- liams, who might have been the first principal female "character" in the casebook, standing helplessly in the wings of her own lawsuit, completely dependent on and subordinate to her husband. This stereotypical image of a woman may misrepresent Mrs. Williams's actual relationship with her husband, and it definitely imparts a first impression about women parties for readers that encourages restric- tive rather than expansive notions of how women can be.77
74.191 Ky. 559, 231 S.W. 45 (1921), excerpted inJ. DAwsON, supra note 1, at 25.
75.KY. REV. STAT. § 404.030 (1972).
76.Ky. REv. STAT. § 404.020(1) (1972) (repealed by implication by the 1942 amendment to § 404.030(1)) (permitting married woman to sell land without husband's consent). See
Schaengold v. Behen, 306 Ky. 544,
77.Adding this historical material to the Crenshaw presentation might counter the sex role stereotyping effect on readers of later cases in the book, such as Reigart v. Fisher, 149
Md. 336, 131 A. 568 (Ap. Md. 1925), eerpted inJ.DAwsoN, supra note 1, at 848, in which a husband not only formally brought suit with his wife, in a dispute regarding the sale of her land, but also "acted as spokesman" for her. Since Maryland's provisions regarding the ca-
pacity of married women were not as restrictive as Kentucky's at the time of the decision in Reigart, readers cannot blame Gulielma Fisher's subordinated conduct on a legal anachro- nism. See Vogel v. Turnet, 110 Md. 192,
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FEMINIST ANALYSIS OF A CASEBOOK |
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The editors' failure to mention the status of Kentucky's Married Woman's Property Act at the time of the decision in Crenshaw is also significant because readers who are familiar with women's history are likely to notice this omission. Because the casebook contains notes about other historical events long overridden by change, 78 these readers may question the editors' avoidance of an appropriate and obvious opportunity to mention a major historical issue affect- ing women in the field of contract law. Female readers who are aware of past restrictions on married women may be angry at the editors for failing to discuss the problem of married women's legally restricted capacity. Or they may feel belittled by the casebook's si- lence on this
Crenshaw also symbolically illustrates the silence that the casebook generally evidences regarding legal problems of current significance to women by suggesting one of the "women's" subjects which the casebook omits. 7 9 The lawsuit in Crenshaw arose when the Wil- liamses could not convey dear title to Mrs. Williams'
terest to women, lies at the heart of the contract problem in
8 1
Crenshaw.
78.See, eg., J.DAwsON, supra note 1, at
37.41(discussing history ofequity).
79.I recognize that my claim that Dawson, Harvey, and Henderson have not included
contracts cases in their book which would be particularly interesting to women might seem difficult to substantiate to some ofmy readers. Not only must I ask you to look with me in the casebook for what's not there, but more problematically the claim assumes the questionable proposition that women have spedal interests, that are different from men's, and that they have utilized the legal system, including contract doctrine, to pursue them.
80.J.DAwsoN, supra note 1,at 25 (editor's note).
81.While reproductive functions and sexuality are also important to men, many femi- nists assert, and I agree, that the lack ofcontrol women have had over these matters isa major
1090 THE AMERICAN UNIVERSITY LAW REVIEw [Vol. 34:1065
Although the line I have quoted from the Crenshaw decision is the only material in the casebook on the subject of reproduction and sexuality, contractual arrangements have been utilized by women and men availing themselves of recent developments in reproduc- tive technology, and cases involving these issues could be utilized in a contracts course. Thus, for example, a woman who seeks to be- come pregnant through artificial insemination by a donor other than her husband is required in many states to obtain her husband's writ- ten consent if she wants him to be legally responsible for the sup- port of the child she conceives;8 2 sperm donors in some states may use contracts to accept or relinquish their rights and responsibilities in children who are conceived with their sperm;83 and men who wish to sire and father children in marriages in which their wives are in- fertile have attempted to use contracts as a way to structure arrange- ments with other women to bear children for them. 8 4
The disputes involving reproductive technology generally arise in the context of support or paternity cases, and yet they raise very traditional, basic contract issues, such as problems of consideration, assent, and the interplay between private ordering and social con- trol.85 Moreover, these disputes can only be understood and suc-
cause of their historical oppression. See, e.g., S. FRIEsroNE, THE DiALeac OF SEx
82.Typically statutes provide that if a husband and wife consent in writing to artificial insemination with semen donated by someone other than the husband, the husband is ir- rebutably presumed to be the father of the conceived child. See, e.g., GA. CODE ANN. §
83.See, e.g., WASH. REv. CODE ANN. § 26.26.050(2) (Supp. 1986). The issue of whether
donors are responsible for the support of children conceived by their sperm is often avoided by medical practices designed to preserve donor anonymity. See
84.Provisions in surrogate contracts which provide for payment to the surrogate mother
beyond her expenses are considered unenforceable in the
82; Note, Parenthoodby Proxy: Legal Implications of SurrogateBirth, 67 IowA L. REV. 385, 389 (1982). Moreover, such contracts have been criticized on the grounds that contractual analy- sis does not adequately consider the best interests of the child. Note, supra, at 389. But see
REsTATEMENT (SEcoND) OF Comitucrs §§ 178, 179 (1979) (promises may be unenforceable on grounds of public policy). There is some evidence, however, that contracts are being used successfully to structure surrogate parenting arrangements in some cases. See, e.g., Syrokow- ski v. Appleyard, 420 Mich. 367, 362 N.W.2d 211 (1985) (requiring circuit court to accept subject matter jurisdiction over biological father's request under Paternity Act for order of filiation declaring paternity of child conceived by surrogate mother under surrogate parent
contract). See also Brophy, A SurrogateMother Contractto Bear a Child,20J. FAM. L. 263 (1981-
82)(presenting surrogate parenting contract used in author's practice with infertile couples).
85.The most commonly litigated dispute involving reproductive technology occurs in a divorce or support proceeding in which a woman who conceived a child by artificial insemina- tion from a third party seeks support for the child from her husband. Courts address this issue by determining whether the husband consented to the insemination procedure and whether the form of consent was adequate to comply with the formality requirements im-
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FEMINIST ANALYSIS OF A CASEBOOK |
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cessfully argued with contract doctrine and discourse,86 a discourse which fully dominates the decisions.8 7 Because the issues are often cast in a complicated configuration that would be pedagogically stimulating, and because the cases contain subject matter such as human reproduction, the organization of the family, and the legal protection of personhood which could be very meaningful to stu- dents, including these materials in this casebook would be a plausi- ble way to break the silence it otherwise imposes on legal problems which currently have particular significance for many women.
Contracts casebook editors might object to using reproductive technology materials, or other materials thought to be of special in- terest to women, such as cohabitation and separation agreement disputes, on the grounds that they should not be expected to satisfy special interest groups in their case selections. I agree that legal content, not interest group satisfaction, should be the appropriate standard for including material. However, even when "women's" materials like the reproductive technology cases satisfy other peda- gogical requirements, editors generally exclude such material from contracts casebooks, presumably because it is "customary" to omit material from casebooks that is considered basic subject matter in other courses.88 Omitting "womens" issues in contracts, therefore, is purportedly justified as a neutral curricular decision to defer such issues to more appropriate courses, which usually means the domes- tic relations or sex discrimination courses.
This deferral is not neutral. By confining issues that particularly concern women to domestic relations or sex discrimination courses, casebooks combine with standard law school curriculums to perpet- uate the idea that women's interests are personal, concerning only themselves or their families. Men, in contrast, are concerned with
posed by statute. See R.S. v. R.S., 9 Kan. App. 39, 670 P.2d 923 (1983). See also supra note 84 (discussing surrogate parenting contracts).
86.See R.S. v. R.S., 9 Kan. App. 89, 670 P.2d 923 (1983) (utilizing equitable estoppel and implied contract doctrines to interpret formality requirement of spousal consent provision imposed by state statute); see also Karin T. v. Michael T., 484 N.Y.S.2d 780, 127 Misc.2d 14 (1985); Anonymous v. Anonymous, 246 N.Y.S.2d 835,41 Misc.2d 886 (1964); Gursky v. Gur- sky, 242 N.Y.S.2d 406, 39 Misc.2d 1083 (1963).
87.Thus, there is a natural fit between the reproductive technology materials and a con- tracts course. Moreover, the family law context in which these cases arise is sufficiently acces- sible so that it should not be a barrier to using the cases in a contracts course.
88.Indeed, Grant Gilmore has described contract doctrine as "a residual category- what is left over after all the 'specialized' bodies oflaw have been added up ...... GILMORE, THE D.ATu oF ComRAar 7 (1974). Editors generally not only leave domestic relations cases out of basic contract materials, but they also minimize the number of cases involving such subjects as insurance, labor relations, admiralty, and business organization. See, e.g., F.
KEssL R].
1092 THE AMERICAN UNIVERSrY LAW REVIEW [Vol. 34:1065
the rest of life. Introducing reproductive technology materials into a contracts casebook would integrate a "woman's" issue into a com- mercial course, thereby loosening a traditional curricular link be- tween subject matter and the sexes. This change would challenge the gendered message curriculums usually imply regarding the sep- arate interests of men and women.
There may, however, be reasons other than course jurisdiction for excluding women's issues like reproductive technology from Daw- son, Harvey, and Henderson. In this casebook, the editors use predominantly commercial issues to illustrate the complicated doc- trines of mutuality of assent, while more personal issues are used to illustrate the counterprinciples of reliance and promissory estop- pel.8 9 This commercial and personal dichotomy between the cases invites readers to analogize the stereotypical gender differences be- tween the sexes to the differences between groups of conflicting rules. That is, readers could assume that, because men as a group customarily dominate women, the rules of assent, which are illus- trated with cases involving the commercial side of life, where men dominate, must be more significant than the rules of reliance, which are largely illustrated with cases involving the more personal side of
life, where women have traditionally been consigned. Excluding "women's" issues from this casebook, therefore, permits the con-
tent of the cases to work doctrinally to further gender stereotypes. Because readers interpret gendered clues in cases, the editors' se-
89.Excluding the section of cases on standard form contracts, which is extensively dis- cussed later, see infranotes
277 F.2d 907 (6th Cir. 1960), excerptedinJ.DAwsON, supra note 1,at 313; Humble Oil &Refin- ing Co. v. Westside Investment Corp., 428 S.W.2d 92 (Tex. 1968), excerptedinJ. DAwsoN, supra note 1, at 375.
In contrast, the unit of six cases on promissory estoppel includes no cases involving sale of goods or construction contracts. There are two cases involving family disputes, Kirksey v. Kirksey, 8 Ala. 131 (1845), excerpted inJ. DAwsoNsupra note 1, at 192
1985] |
FEMINIST ANALYSIS OF A CASEBOOK |
1093 |
lection and organization of cases subtly communicate a message that estoppel doctrine is subordinate to assent doctrine. Although Daw- son, Harvey, and Henderson do not editorially address the relation- ship
Including the reproductive technology materials in this casebook would decrease the power that its gendered messages exercise over readers' views of themselves. But including these materials would also loosen the relationship between gender and the editors' pres- entation of legal doctrine. Thus, because these materials seem so- licitous and protective of male donors and male spouses,90 the materials would challenge readers' impressions from cases likejack- son v. Seymour 91 that contract doctrine can only be used altruistically for women. Similarly, because these decisions involve obviously personal issues, including them in the casebook would disrupt the commercial/personal dichotomy that presently prevails in the mu- tual assent and promissory estoppel sections. This would not only break the implicit link the casebook now makes between the sexes and "hard" rules like assent and "soft" rules like reliance; 92 it would also force Dawson, Harvey, and Henderson to confront their posi- tion regarding the relationship of the assent and estoppel rules more straightforwardly. Just as gender provided an analytical short- cut to the courts in Fitzpatrickand inJackson, so gender has permitted Dawson, Harvey, and Henderson to skirt their views about the rela- tionships within legal doctrine in their casebook. Breaking the book's silence on women's issues, therefore, would challenge the power of gender over the casebook editors themselves.
90.One could argue that there is a discriminatory tilt in this area in favor of men. Thus, male spouses with sterility problems are protected against unwanted parental responsibility by statutes requiring their written consent to the artificial insemination procedures, even though these requirements may make parenthood somewhat more difficult for women whose husbands are sterile. See supra notes 82, 83. Similarly, male donors who wish to sell their sperm and avoid any further responsibility for children who are conceived are permitted to use contracts for those purposes, while women have not been permitted to contract for the use of their wombs and the sale of their ova. See supranotes 83, 84. However, these materials can also be understood as discriminating against sterile married men or men who are married to infertile women, for the decisions make siring and fathering children of their own difficult for these men. This reversed understanding of the discriminatory tilt of the decisions is one of the reasons they would be interesting to add to a contracts casebook; the results in these cases cannot be explained by our traditional ideas of what women and men are like.
91.Seesupra notes
92.By sexualizing these materials through the selective use and organization of women's
cases, the editors obstruct connections readers might usefully make between them. Cf Dalton, supranote 3, at 999 (describing how doctrines constitute other doctrines generally understood to stand in opposition to or in conflict with them).
1094 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 84:1065
2.Women as authorsand in the language of the casebook
In addition to their significance as "characters" in the casebook, the way women appear as authors and in the casebook language also influences readers' ideas about gender. Thus, some readers who see the judges and legal commentators whose work editors select for reproduction in a casebook as professional role models are inter- ested in how many women are among those selected. Readers today are also sensitive to whether editors recognize women in the lan-
guage of a casebook, both as characters in a book's questions and
problems and through the use of feminine pronouns when authors or editors write about the generic person.93 Readers who examine Dawson, Harvey, and Henderson closely to evaluate the appearance of women as authors or in the language will find, however, that women are virtually invisible in these aspects of the casebook. 94
Beginning with the language of the book, readers will find that the editors and their authors use masculine pronouns consistently throughout the cases and the materials to refer to the generic per- son. A provision of the U.C.C., which the editors include in the casebook, forthrightly claims that "words of the masculine gender [should be understood to] include the feminine and the neu-
ter.... ."95 The practice extends, however, substantially past the
U.C.C. in Dawson, Harvey, and Henderson to reach even cases involv- ing women, where judges use masculine pronouns to phrase the rule statements that apply to female parties.95
Historical custom might explain the exclusive use of masculine pronouns in the U.C.C. and the older decisions, but it will not elimi- nate the impact that the casebook's lack of feminine pronouns has on most readers. And yet the casebook editors never take corrective measures through their editing perogatives to assure readers that the particularity of women is recognized. Thus, for example, the editors leave undisturbed law review excerpts in which influential
93.For an essay by a linguist discussing the relationship between language and gender formation, see McConnell- Ginet, D'ference andLanguage:A Linguist'sPerspectivein TuE FUTURE or DirrnRNcE,
94.Although I write as if readers in general will notice the observations elaborated here about women as authors and in the language of the casebook, typically only readers who are conscious ofgender issues are likely to notice such things. I believe, however, that most read- ers are influenced by these
95.U.C.C. §
96.See, e.g., Parker v. Twentieth
states that the general principle that "governs the obligations of an employee after his em- ployer has wrongfully repudiated or terminated the employment contract... requires him to make a reasonable effort to secure other employment. He is not obliged, however, to seek or accept any and all types of work which may be available." Id.at 185, 474 P.2d at 695, 89 Cal. Rptr. at 743, excerptedinJ. DAwsoN,supra note 1,at 46,51 (emphasis added, footnote omitted).
1985] |
FEMINIST ANALYSIS OF A CASEBOOK |
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commentators write as if parties to contracts are exclusively male 97
or in which distinguished scholars speak directly and specifically to readers as men.98
Dawson, Harvey, and Henderson also fails to modify their own lan- guage to include feminine pronouns. Of the nine problems which the editors have created for the casebook, almost all contain neutral,
nongendered names such as "s" and "b ," "a" and "b ," "trustee" or "vendee." 9 9 But in those instances where the editors do not de-
scribe the figures in the problem neutrally, they refer to them by male pronouns, 10 0 with the sole exception of one question, (out of six, in the fourth problem), in which the editors refer to a shopper
interested in purchasing an alligator handbag as "she."'' Using a
97.See, e.g., Fuller & Perdue, The RelianceInterestin ContractDamages,46 YALE L.J. 52, 56- 57 (1936), quoted inJ.DAWSON, supra note 1, at
98.Consider, for example, two passages placed relatively early in the book with the ap- parent intention of directing the readers' attention beyond the development of legal doctrine. Thus, in a portion of the stirring Holmes essay which includes the phrase, "[ilf you want to know the law and nothing else, you must look at it as a bad man .. ." the clear and personal voice of thejustice speaks directly to readers who want to know the law, but he speaks to the readers quite specifically as men. Holmes, The Path of the Law in COLLECTED LEGAL PAPERS
craft, knowledge, beauty and vision with the needs and aspirations of "a man," "a man," and "a man." K. LT.EwELLN, THE BRAmBLE BuSH
at
99.J. DAwsoN, supra note 1, at 98 (contract between "s" and "b"); id at 133 (dealings between "vendor" and "vendee"); id. at 227 (contract between "seller" and "buyer"); id at
304(claims of"a" and "b"); id at 353 (bids of "sub" and "general"); id at 365 (negotiations between "offeror" and "offeree," "v" and "p"); id at 640 (sale of land by "s" to "b "); id at
855(conveyance from "vendor" to "vendee").
100.J. DAwsoN, supra note 1, at
101.In addition to the nine problems Dawson, Harvey and.Henderson have written for the casebook, they have also included a much larger number of shorter "questions" which are dispersed throughout the book. Like the problems, the questions do not use feminine names or pronouns to refer to persons generically. However, a few questions which refer to cases involving women do use feminine pronouns to refer to those parties. E.g., id at 125, 233,
918.Indeed, one of the few examples of blatant sexism I have found in the book involves one
such question. Immediately following the note case of Ricketts v. Scothorn, 57 Neb. 51, 77 N.W. 365 (1898), excerptedinj. DAwsoN, supra note I, at 193, the editors challenge that court's use of equitable estoppel in a case in which a granddaughter is suing her grandfather's estate to enforce his promise to give her money so that she could stop working. Although the granddaughter had returned to work after a year, and the court found that in her year of not working she had "altered her position for the worse on the note being paid in full," Dawson, Harvey and Henderson ask "Was Katie's position altered very much 'for the worse?' "J.DAw- soN, supranote 1, at 193. I doubt they would have asked such a question if Katie had been a male grandchild, for whom work would have been understood as important for his feelings of
1096 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065
feminine pronoun once, and then only in conjunction with the stere- otypical woman's role of mindless consumer, hardly compensates for the many instances in the casebook where women were not rec- ognized because of historical custom. Instead, a reader's over- whelming impression is that the casebook is not addressed to, nor does it contemplate, women.
In addition to blocking women out of the language, the casebook conveys the mistaken impression that legal authors are exclusively male. One cannot tell from reading the cases whether the judges who wrote the decisions are men or women. In other materials that introduce readers to some of the heroes of the law and their ideas,' 0 2 however, the editors leave many clues that men monopo- lize legal authorship in contracts.103 Unlike their sexblind treatment of case authors, the editors often indicate the sex of legal commen- tators in the book, either by including their first names when their
0 4to refer to them names are used1 or by using masculine pronouns
in editorial material.' 0 5 Indeed, by including their portraits or pho- tographs among the illustrations in the book the editors remind readers that Holmes, Mansfield, Corbin, Llewellyn, Cardozo, and Hand were not women.' 0 6
Well, ofcourse they weren't, the Individualist Reader might object here. Surely Dawson, Harvey, and Henderson should not be asked to distort history, nor should they be blamed for the historical dis- crimination against women in the legal profession. No, they shouldn't; and yet I think they are responsible for the way their casebook influences readers' views regarding women's current op- portunities in the legal profession. I think the invisibility of women as legal authors and in the casebook language may be a significant omission to readers. Readers may well understand that for peda- gogical reasons the casebook must rely heavily on materials pro-
102.Dawson, Harvey, and Henderson state in their preface that in addition to "substan- tive knowledge and analytical skills," their book aspires to pass on "a language and a culture."
J.DAwsoN, supra note I,at xvii.
103.In fact at least several cases in the casebook were written by women. See, e.g., Sheets
v.Teddy's Frosted Foods, 179 Conn. 471,427 A.2d 385 (1980) (Ellen PetersJ.), excerpted inj.
DAWSON, supra note I,at 254; Bleecher v. Conte, 29 Cal. 3d 345, 626 P.2d 1051, 173 Cal. Rptr. 278 (1981) (Rose Bird, CJ.) excerpted inJ. DAWSON, supra note 1, at 660.
104.See, eg., J. DAWSON, supra note 1, at 4 (discussing work of "Lon" Fuller); ia.at 40 (discussing rebellion against chancery led by "Sir Edward" Coke).
105.SeeJ. DAWSON, supra note 1,at 589 (reference to Kronman, Mistake,Disclosure, Infonma- lion, and the Law of Contracts,7J. LEGAL STUDIES 1 (1978)).
106.Id. at 31 (illustration of Oliver Wendell Holmes, Jr.); idat. 772 (illustration of Earl of Mansfield); id.at 709 (photograph of Arthur Corbin); id at 459 (photograph of Karl Llewel- lyn); id at 195 (illustration of Benjamin Cardozo); id.at 344 (photograph ofJudge Learned Hand).
1985] |
FEMINIST ANALYSIS OF A CASEBOOK |
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duced when women were not recognized in common language
If, for example, The Feminist Reader or the Reader with a Chip on her Shoulder, uses the presence of women among the authors and in the language of the casebook to test the editors' stance to- ward women, the editors will fail to win her confidence. The casebook might then become a less effective learning device for such a reader. Alternatively, if The Feminist Reader, the Reader with a Chip on her Shoulder, or Readers Who are Undressed for Success look for women among the authors and in the casebook language because they need and seek some assurance that women or womanly people are not excluded from the profession, they will find nothing in this casebook to reassure them. Because the authors of the law in Dawson, Harvey, and Henderson all seem to be men, because legal scholars address men exclusively in their writing, and because the editors and judges do not refer to women in their rule statements or their questions, these readers will not know from this book that they can listen when legal authors speak, or that they might some day join their ranks.
In contrast with readers who are angered or hurt by the invisibility of women, the Gentleman Reader and the Reader with a Chip on his Shoulder will be relieved that these aspects of the casebook confirm their view that women are as unimportant in the legal world as they are (or should be) elsewhere. Insofar as the
readers is related to their feelings that they are better than women, the casebook supports their particular form of
107.One feminist commentator has described the psychological differences between men and women by making a similar point about the basis for male
All oppressed people must be controlled. Since open force and economic coercion are practical only part of the time,
allowed to experience some power as long as they expend their power against other men and against women....
The Masculine Imperative means that men avoid the threat of failure, inadequacy, and
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3.The placement of women's cases: gender and the implicationsof casebook organization
We have now examined women as "characters" in the cases, among the "authors" of the casebook, and in the casebook lan- guage. My claim in the preceding discussion has been that in the course of learning contract doctrine from these casebook materials, readers receive messages about gender that perpetuate their ideas about the divisions between the sexes. In some instances, the gendered messages also affect their view of doctrine, either because of an idea which a particular case conveys or because the organiza- tion of cases involving women or subjects generally associated with them suggests a gendered message to readers.108 My final observa- tions regarding the treatment of women in this overview of the casebook elaborate my claims regarding the significance of the casebook's organization of cases involving women.
The position that case organization affects readers' views of legal doctrine and legal theory is undoubtedly familiar. Editors can affect the way readers interpret the content of doctrine or the way they think about legal reasoning by rearranging the customary order of subjects within a casebook 0 9 or by placing decisions with similar facts but different outcomes side by side. If women were more rep- resented and less stereotyped in the casebook, readers might be un- likely to take gender into account in considering the doctrinal or theoretical significance of the relationships among cases. The lim- ited number of cases involving women in Dawson, Harvey, andHender- son, however, renders the presence of women a factor readers can interpret when they consider the significance of casebook organization.
Because readers hold multiple and conflicting ideas regarding the distinctions between the sexes, readers might attribute a number of different meanings to the organizational significance of cases involv- ing women. The two illustrations I discuss below involve only one of the many organizational issues one could explore and only one gen- der message. I focus on the use of women in two variations of the case/countercase organizational technique, a technique often used
J. Russ, supra note 17, at 44.
108.See supra note 89 and accompanying text.
109.For example, Lon Fuller's use of remedies at the beginning of his casebook is fre- quently cited as an example of the use of casebook organization to affect readers' views re- garding legal formalism. See Kare, ContractsJurispudence and the
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FEMINIST ANALYSIS OF A CASEBOOK |
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in casebooks. 110 And I concentrate on the message of subordina- tion, which I believe readers can construe from cases involving wo- men. Because the subordinate status of women in society is so commonly acknowledged, I think readers will be most inclined to think of that message when they consider the relationship between conflicting cases where only one of the cases involves a woman.
The case/countercase scheme typically encourages readers to dis- pute the formalistic reasoning of cases that are paired together. On a theoretical level, readers can interpret this scheme to imply that rules are ruthlessly indeterminate, that legal doctrine fails to pro- vide a predictable way to determine a certain result in particular sit- uations. More conservatively, readers can interpret the case/countercase scheme to imply that the rule of one case is an exception to the rule of the other case. This rule/exception interpre- tation is based on an assumption that one of the cases has less au- thority than the other, while the indeterminate interpretation is based on a belief that the cases could have equal authority. I believe that pairing a case involving a woman with a conflicting case involv- ing male parties invites readers to adopt the rule/exception inter- pretation of the case/countercase scheme rather than the indeterminate or rule/counterrule interpretation. The two examples I have chosen from the casebook not only contextualize this asser- tion but also suggest how gender strongly tempts readers to choose the more conservative interpretation of the case/countercase scheme.
Dawson, Harvey, and Henderson were unable to resist beginning their casebook with the decision of Hawkins v. McGee,' the well- known case a patient initiated against his doctor after plastic surgery left the patient with a hairy hand instead of the perfect hand the doctor had promised. As the introduction to contract remedies, the decision in Hawkins utilizes the expectation measure of contract damages.112 The ludicrous results that the standard promises to
110.There are at least a half dozen times in Dawson, Harvey, and Henderson where a wo- man's case is paired with a contradictory case involving a man. Compare Parker v. Twentieth
111.84 N.H. 114, 146 A. 641 (1929), excerpted inJ. DAwSoN, supra note 1, at 1.
112.The Restatement (Second) ofContracts indicates that expectation is the primary standard
1100 THE AMERICAN UNIVERSrry LAW REVIEW [Vol. 34:1065
yield in the Hawkins case may prejudice the reader's respect for the expectation measure, however.113 The law review comment on reli- ance damages that follows the case,' 1 4 and a note case, also involv- ing plastic surgery, in which the reliance measure of damages provides more reasonable compensation to the injured party, 155 un- doubtedly assist this result. Thus, most readers would agree that the expectation measure does not work well in situations like Hawkins.
Dawson, Harvey, and Henderson, however, obviously believe that the expectation measure is the primary standard by which contract remedies are gauged, for expectation dominates the first three sec- tions of the book. If one holds this attitude toward the expectation measure, then one would not want readers to confuse their criticism of the effectiveness of the expectation measure in Hawkins with their appreciation of the importance the measure generally has in other remedial situations. In my judgment, the editors' choice of Sullivan
6
v. O'Connor"1 as the note case following Hawkins signals readers
that the reliance damage measure is an exception to the primary standard of the expectation measure. The plaintiff in Sullivan is a woman, "a professional entertainer," who sought plastic surgery on her nose.. .to "enhance" her beauty and improve her appearance. These facts will surely remind many readers of the stereotypical im- age of woman as princess (or beauty
17 |
Connecting this image of inferiority to the reliance measure |
well. 1 |
of damages utilized in the case will encourage readers to believe that, however fairly the decision in Sullivan seems to come out, the reliance standard it utilizes is inferior to the basic principle set forth in Hawkins.
for measuring contract damages. RESTATEMENT (SECOND) OF CONMT'At"s § 347 (1979). The expectation measure, which gives an injured party damages measured by the value of the performance he or she was promised, is frequently contrasted with the reliance measure. The expectation measure puts an injured party where she would have been but for the breach, whereas the reliance measure puts an injured party where she would have been but for the contract. See generally Fuller & Perdue, supranote 92, at 54, quoted inJ. DAWSON, supra note 1,at
5.
113.The court concludes that the appropriate measure should be "the difference between the value.., of a perfect hand... and the value of the hand in its present condition...." Hawkins v. McGee, 84 N.H. 114, 117, 146 A. 641, 644 (1929), excerpted inJ. DAwsON, supra note 1, at 1, 3.
114.The excerpt from Fuller's Article on reliance damages includes his critique that there is less justification for the use of the expectation measure than the reliance or restitution measure. Fuller & Perdue, supra note 92, at
115.Sullivan v. O'Connor, 363 Mass. 579,
116.l. at
117.See generally L. GILBERT & P. WEBSTER, BOUND BY LOVE THE SwEEr TRAP OF DAUGHT- ERHOOD
1985] |
FEMINIST ANALYSIS OF A CASEBOOK |
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The Hawkins and Sullivan case/countercase example concerns a relationship between a major case and a note case. My second ex- ample of the way the subordinate status ofwomen affects the inter- pretation of casebook organization involves a relationship between sections within a chapter. (This is a section/countersection varia- tion on the case/countercase scheme.) The editors have organized the four sections of the contracts remedies chapter so that the first two sections are primarily concerned with the expectation standard for measuring damages. The expectation standard also dominates the third section, which deals with reliance and restitution damages, because the editors present these alternative damage remedies in terms of their relationship to the expectation measure. The expecta- tion measure, therefore, commands considerable authority by the time the reader turns to the fourth section of the chapter, which is on equitable remedies. The preceding sections of the chapter have demonstrated that money damages often fail to secure an injured party her expectation interest. Upon learning that an equitable remedy requires the breaching party to do exactly what she agreed to do readers might assume that equitable remedies promise to achieve the goals of the expectation standard more satisfactorily than money damages. Indeed, the reader approaching the casebook section on equitable remedies is likely to wonder whether it contains the ultimate form of expectation
The concentration of cases involving women in the equitable rem- edies section, however, is likely to signal readers that equitable rem- edies are subordinated to money damages as the common method of effectuating the expectation standard. Of the eighteen major cases that precede the equitable remedies section in the chapter, a reader may have noticed only one woman among the parties. 1 18 In contrast to the low number and proportion of cases involving wo- men in the preceding cases, three of the five cases in the equitable remedies section involve women as parties.'1 9 Since women domi-
118.Parker v. Twentieth
119.The three cases involving women are: Fitzpatrick v. Michael, 177 Md. 248, 9 A.2d 639 (1939), excerpted in J. DAwsoN, supra note 1, at 128; Gartrell v. Stafford, 12 Neb. 545, 11 N.W. 732 (1882), excerpted in J. DAwsoN, supranote 1, at 118; Timko v. Useful Homes Corp., 114 N.J. Eq. 433, 168 A. 824 (1933), excerpted in J. DAwsoN, supra note 1, at 123.
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nate this unit of cases, some readers will use this fact as a clue to the relative value of equitable remedies. By comparing the inferior sta- tus of women to the relationship between the "women's" unit on damages (the equitable remedies section) and the "men's" unit (the money damages sections), these readers would assume that money damages are dominant. Under this interpretation, which comports with the position of the Restatement, 120 the equitable remedies sec- tion is not the capstone of the contract damages chapter; instead it demonstrates that some aspects of
Because the organization of cases involving women in both of the preceding examples reinforces a doctrinal message that is in accord with substantial authority, 12' it might be tempting to assume that readers will benefit from the gendered messages they gleaned from the organizational significance of these women's cases. As I will demonstrate in the two major case studies presented later in the Es- say, however, there are times when certain readers will misinterpret the organizational significance of women's cases, which will hinder their ability to learn particular doctrinal messages. In addition, I believe that readers are personally harmed when the relationship between casebook structure and doctrine depends on gender. Utilizing the subordinate status of women as part of doctrinal analy- sis reinforces the division between the sexes. It reminds men and women of the different historical treatment of the sexes, it revital- izes the nefarious contention of
Readers are harmed when the relationship between casebook structure and doctrine depends on gender because this kind of orga- nizational message analysis is implicitly based on the manipulation of women. Although cases involving men are organized so that their position in the book also conveys doctrinal messages, these messages are not
120.Cf. RESTATEMENT (SECOND) OF CONTRACTs §§ 347, 359(l) (1979). Section 359() pro-
vides: "(1) Specific performance or an injunction will not be ordered if damages would be adequate to protect the expectation interest of the injured party." Id See also supranotes I11- 116 and accompanying text.
121.Seesupra notes 114, 120.
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less symbolically conveys the message to readers that men and wo- men can be treated differently. By utilizing the idea of different treatment in the placement of women's cases the casebook furthers the constraints of gender, nourishing a reader's consciousness that the sexes are divided by more than their biological differences.
B.The Maleness of the Casebook
Although the preceding part of the casebook examination focused on the treatment of women, the casebook treatment of men was an integral, if submerged, part of that discussion. Thus, we not only saw that the masculine pronoun overwhelmingly dominates the fem- inine when the book utilizes gendered pronouns, but that the lan- guage of the book specifically and exclusively addresses readers as men.1 2 2 Moreover, the authors of the opinions and of the supple- mentary material included in the book all seem to be male; 123 (in- deed, the editors themselves are all men). Finally,
I did not include in the preceding part of this section any discus- sion of the manner in which the cases characterize men. Although the imagery of the cases may reinforce readers' opinions about the limitations of male personality traits, there are so many men in the casebook that, by dint of sheer numbers, the male "characters" ex- hibit a much broader range of human behavior than the women do. There may be no nurturing parent or tempestuous sex object among the male parties in the casebook, but Lady
122.See supra notes
123.See supra notes
124.Seesupra notes
125.See supra notes
126.Mills v. Wyman, 20 Mass. (3 Pick.) 207, 207 (1825), excerpted inJ. DAwsoN, supra note 1, at 181.
127.See supra notes
128.Britton v. Turner, 6 N.H. 481,482 (1834), excerptedinJ. DAwsON, supra note 1, at 104.
129.Hamer v. Sidway, 124 N.Y. 588, 540, 2 N.E. 256, 256 (1891), excerpted inJ. DAwsoN, supra note 1, at 156.
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THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065 |
travagant
3 313 43 5
law,1 a
My claim about the maleness of the casebook does not rest, how- ever, on how many men there are in the casebook or the wide range of behavior they exhibit. I believe that, even if the editors trans- formed the casebook by equalizing the number of cases involving men and women and by editorially defusing stereotyped characteri- zations within all the cases, the casebook would still seem male. My objective in this part is to demonstrate why this is so.
The assumption underlying my claim that a casebook can be male is my belief that, because ideas about gender are deeply rooted in our culture, casebook readers are accustomed, if not reconciled, to categorizing characteristics according to the masculine/feminine paradigm. Many casebook readers may not share the opinion that women and men differ in ways that far exceed the biological distinc- tions between them; they may believe that gender differences are not required by the inherent, unalterable, biological differences be- tween women and men.13 7 Indeed, for many readers (and I include myself among them), gender distinctions do not accurately describe our friends, our colleagues, our children, or ourselves as women and men. Nevertheless, dividing our ideas by sex is sufficiently fa-
miliar that we could agree in a rough way which characteristics "'most people" attribute to men and which to women. My analysis
of the maleness of Dawson, Harvey, and Henderson proceeds on the
130.Fera v. Village Plaza, Inc., 396 Mich. 639,
131.Hoffmnan v. Red Owl, 26 Wis. 2d 683, 133 N.W.2d 267 (1965), excerptedinJ. DAwsoN, supra note 1, at 355.
132.Brackenbury v. Hodgkin, 116 Me. 399, 102 A. 106 (1917), excerpted in J. DAWSON, supra note 1, at 331.
133.Id
134.Sheets v. Teddy's Frosted Foods, 179 Conn. 471,427 A.2d 385 (1980), excerpledinJ.
DAWSON, supra note 1, at 254.
155.Boone v. Coe, 1153 Ky. 233, 154 S.W. 900 (1913),a cerptedinJ.DAwsoN,5upra note
1, at 92.
136.Webb v. McGowin, 27 Ala. App. 82, 168 So. 196 (1935), cert. denied, 232 Ala 374, 168 So. 199 (1936), excerpted inJ.DAwsoN, supra note 1, at 185.
137.See Chodorow, Gende, Relation, and Diferenc in Psychoanalytic Perspective in Tk- Fu.
TURE OF DIFFERENcE
struction of gender differences based on psychoanalytic, social, and cultural factors.
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assumption that casebook readers generally share my views that an- alytical intellect, detachment, autonomy, and control seem mascu- line, whereas emotional intellect, attachment, compassion, and spontaneity seem feminine. I do not claim that these qualities are essential to either sex. In fact, I would argue that they aren't. I only claim to have described my impressions of the way many people un- derstand the content of gender.' 38
Because we can also use the traits that we attribute to men and women to describe things (such as boats, machines, and buildings), objects which are described by characteristics predominantly related to one sex can be directly identified by gender.'3 9 Although any cultural artifact can seem gendered, books are especially susceptible to seeming male or female because one can use their contents, as well as their form and function, to determine their character. For me, considering the style as well as the contents of Dawson, Harvey, andHenderson, the casebook's most salient characteristics are its ana- lytical, abstract character and its authoritarian neutrality. I believe that these characteristics are commonly understood as masculine and, therefore, that the casebook itself seems male. In the remain- ing pages of this part, I will demonstrate why the characteristics I have mentioned accurately describe Dawson, Harvey, andHenderson; I will also describe the effect of the casebook's maleness on readers.
1.The analytical,abstract characterof the casebook
The analytical and abstract character of Dawson, Harvey, and Hen- derson stems in part from the organizational structure the editors have chosen. The editors have used several organizational tech- niques that not only are abstract or analytical in themselves but that also encourage abstract analysis in casebook readers. The editorial
138.Although the attributions I have made accurately reflect how I think many people would characterize the sexes, I also believe that people attribute qualities to the sexes in a relational way. That is, when women exhibit the traits generally ascribed to men, we tend to think of these traits in comparison to opposing, differently formulated traits linked to men. We make the same comparative adjustments when men exhibit "feminine" characteristics. However, because of men's traditional dominance over women, the traits which were positive when we they were linked with men may seem negative when they are attributed to women. Thus, women may be described as scheming, cold, selfish, and manipulative, when they ap- pear intellectual, detached, autonomous, and in control, while men may be described as unin- hibited, loyal, considerate, and
139.As long as we continue to identify characteristics by one sex or the other, the only barrier to fully genderizing all our artifacts is whatever limits our imaginations impose on our willingness to personify things. My sturdy, dependable, capacious, cyclical washing machine is certainly an "old girl," rather than an "old boy" to me, while the computer on which I am composing these words is so logical and
1106 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065
decision to open the book with a substantial unit on contract reme- dies illustrates this kind of technique.' 4 0 This opening distinguishes
Dawson, Harvey, and Henderson from most other contracts books. 14 '
The idea of beginning a contracts casebook with remedies was origi- nally introduced as a way to use the organization of the contracts casebook to challenge formalistic legal analysis, 14 2 and even today this way of organizing a book seems counterintuitive. Students ex- pect that they should learn about contract formation and breach before they study remedies. 14 3 The analytical challenge of the casebook's organization tends to dominate readers' responses to the casebook. The remedies beginning encourages readers to focus, from the very outset of the book, on an enormously complicated rule structure that they find hard to connect with their own experi- ence. The opening of the casebook thus initiates and facilitates an
abstract and analytical response to the casebook.
After the opening chapter on remedies, the editors continue to organize the casebook according to doctrinal categories that are di- vorced from the chronological or relational contexts of contract transactions. 144 This organization also encourages readers to focus on rules in the abstract. Because the structure separates the rules from the more concrete and personalized aspects of the casebook-
the case settings, the parties, and even thejudges who authored the
The extensive use of the case/countercase organizational tech-
140.J. DAwsON, supra note I, at
141.See, e.g., L. FULLER & M. EISENBERG, BASIC ComaCr LAW (4th ed. 1981); C. KNAPP, supra note 55; F. KESSLER, supranote 88; A. MUELLER, A. Rosmr & G. LOPEZ, CONTRACT LAW AND ITS APPLICATION (3d ed. 1983).
142.See KIare, supra note 109, at 882.
143.This form of organization probably seems natural because it is "chronological." See Kiare, supra note 109, at 878. It also seems natural to students, however, because many con-
tract study aids and contract treatises are organized chronologically. See, e.g., J. CALAMARI &J. PERILLO, THE LAW OF CONTRACTS (2d ed. 1977); M. EISENBERG, GILBERT LAW SUMMARIES: CONTRACTS (1lth ed. 1984); S. EMANUEL & S. KNOWI.ES, EMANUEL LAW OrLINES: CoNTrACTs (2d ed. 1984); E.A. FARNSWORTH, CONTRACTS (1982); G. SCHABER & C. ROHWES, CONTRAcTS IN A NUTSHELL (2d ed. 1984); RESTATEMENT (SECOND) OF CONTRACTS (1979); cf LEGALINES: COTRACTS (R. Meslar ed. 1983) (adaptable to courses utilizing materials by Dawson).
144.Examples of the categories into which the editors divide the casebook are "Grounds for Enforcing Promises" and "The Consensual Basis of Obligation." See J. DAwsON, Supra note 1, at xix (summary of Table of Contents).
145.My claim here should be familiar, in that the impersonality of legal study has been described and criticized elsewhere. See, e.g., J. NOONAN,JR;, PERSONS AND MASKS OF TIE LAW
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nique also illustrates the book's analytical and abstract character. This technique could produce concrete rather than abstract read- ings of conflicting cases if readers could evaluate the factual differ- ences between decisions. The factual distinctions do not speak for themselves, however, and the casebook does not provide any gui- dance about how to evaluate them. If Dawson, Harvey, andHenderson readers, therefore, use the case/countercase technique to focus on factual comparisons between conflicting cases, this analysis is likely to produce an abstract discussion. Moreover, as I have stated ear- lier,146 the case/countercase technique typically invites readers to use the doctrinal relationship between specific contract rules as a way of thinking about the theoretical implications of contract doc- trine. This too produces an abstract analysis of the materials.
Although the organizational factors discussed above contribute to the analytical, abstract characteristic that makes this casebook seem male, this characteristic stems primarily from the contents of the casebook. Like the majority of law casebooks, this casebook mostly contains appellate decisions that concentrate on doctrinal analysis. Just as casebook editors like Dawson, Harvey, and Henderson adopt strategies that encourage readers to separate rules from contexts, so appellate courts commonly subordinate discussion of the contexts of disputes in order to focus on rule analysis. Thus, a major reason that Dawson, Harvey, andHenderson seems male is because it contains so many appellate decisions.
My claim that Dawson, Harvey, andHendersonseems male because it utilizes organizational techniques and subject matter that are rou- tinely used in legal education may seem fanatical. Using appellate opinions or organizing materials by doctrinal categories shouldn't be considered "male," the Individualist or Civil Libertarian Reader might object: using these things is simply normal. However "nor- mal" the character of this casebook may seem to some readers, its abstract, analytical traits will make it seem male to other readers. One of the problems with the ideology of gender is that men's dom- inance over women permits the eclipse of traits that are associated with women. Male traits seem standard only because female traits are suppressed from observation and consideration.
In any event, it is disingenuous to claim that this casebook is so "normal" that its analytical and abstract character should not be
considered male. Other editors in recent years have departed from the organizational forms and
146.Seesupra note 110 and accompanying text.
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ganized around problems particularly challenge the assertion that this casebook is a standardized, nongendered document, because the problem technique renders casebooks substantially more "femi-
nine" than Dawson, Harvey, andHenderson. 47 Problems permit read- 1
ers to personalize casebooks. Problems require students to undertake tasks that involve their interaction with the materials, that allow them to observe contexts which include settings, characters or issues that often mirror their lives. Casebooks utilizing the problem technique dispute the claim to "normalcy" of a casebook like Daw- son, Harvey, and Henderson, and the contrasting level of abstraction between the two types of books emphasizes the "maleness" of Daw- son, Harvey, andHenderson.
In addition to the appellate decisions that dominate the content of Dawson, Harvey, andHenderson, I believe that the illustrations the edi- tors have included in the casebook also demonstrate the casebook's abstract and analytical character. I consider the illustrations part of this casebook's appeal for readers; students are unaccustomed to charming felicities in legal reading matter. The idea of using illustra- tions in a law casebook suggests an editorial compassion for weary readers and a somewhat impish desire to surprise: the idea seems, in a word, "feminine." As it turns out, however, the illustrations in this casebook emphasize the abstract, depersonalized quality of the book as a whole, partially because when one comes up on them the illustrations seem so odd, in contrast to the other material, and par- tially because the editors fail to connect the illustrations to the con- tent of the book. Although none of the illustrations included in the casebook can literally be labelled abstract, because they each repre- sent a concrete object or person, they seem abstract because, with two exceptions they have only a tenuous relationship to the sub- stance of the book. 148 The illustrations are interesting but only in
147. See, e.g., C. KNAPP, supranote 55; T. MORGAN & R. ROTUNDA, PROBLEMS AND MATERI-
ALS ON PROFESSIONAL RESPONSIBILMT (2d ed. 1981); E. RABIN, FUNDAMENTALS OF MODERN REAL PROPERTY LAw (2d ed. 1982).
148.The illustrations that arguably are useful to the way readers understand the book accompany Rockingham County v. Luten Bridge Co., 35 F.2d 301 (4th Cir. 1929), excerpted in J. DAwsoN, supra note 1, at 41, and Mitchill v. Lath, 247 N.Y. 377, 160 N.E. 646 (1928), ex- cerptedinJ. DAwsON, supra note 1, at 426. The Luten Bridge illustration shows the photograph of a bridge, J. DAwsoN, supra note 1, at 43, that a construction company continued to build after county commissioners rescinded the contract for its construction and discontinued work on the connecting surface roads. Because the bridge looks quite substantial and unoccupied in the picture, it may reinforce the arguments in the decision regarding the value of mitigating damages. The Mitchill photographs,J. DAWSON, supra note 1, at 427, 430, show an elaborate summer house and the plain wooden ice house that blocked its view. The summer house purchaser claimed that the seller had agreed to tear the ice house down. The photograph of the buildings may help readers determine whether the parties were likely to have included such an agreement in the contract for sale of the house. I think I may be giving the editors the
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themselves; they are sometimes funny (one is surprised in seeing
them), but they do not help readers understand the cases or the legal doctrine they are studying. 149
Because the form and content of this casebook together make its analytical and abstract character so predominant, the casebook en- courages readers, by example, to cultivate the analytical portions of their intellect, and to separate themselves from their work. Readers do not receive positive reinforcement to nourish their emotional sensibilities or to empathize with dients and their problems as part of legal problem solving. Insofar as the activities that the casebook neglects to nurture are commonly understood as feminine, the casebook subtly warns readers, as future lawyers, to repress the fem- inine characteristics within themselves.
2.The authoritarianneutrality characteristic
Like many law casebooks, Dawson, Harvey, and Henderson seems neutral both in style and content. The editors have not visibly in- jected themselves or their opinions into the casebook, so that there seems to be no editorial presence in the casebook. Moreover, the editors have selected uncontroversial material to accompany the ap- pellate decisions in the casebook, so that the contents of the casebook are quite unlikely to provoke emotional responses from readers. Although the editors have chosen to evade personal in- volvement and commitment in their casebook, they never acknowl- edge that the book's neutrality is deliberately contrived; they do not admit that their casebook has a point of view. Thus, the editors are authoritarian about the casebook's neutrality; they offer readers no information about what is left unsaid in their casebook. Because most readers associate detachment and control with men, the au- thoritarian neutrality of this book seems male. Several examples demonstrate this characteristic.
benefit of the doubt on the Mitchill photos, however, since they do not affect my own views of the case.
149.At best the illustrations may help readers remember the cases they accompany. At worst, perhaps inadvertently, they convey information to readers about the hierarchy of the legal profession. Thus, the illustrations of four celebrities, mentioned supra note 64, could suggest that only famous clients are sufficiently interesting to warrant illustrations, and most lawyers won't have the opportunity to represent such people. The six imposing photographs of legal heroes, mentioned supranote 106, are a visible reminder that women and minorities do not yet have a significant presence in the profession. The full page picture of a cow that accompanies Sherwood v. Walker, 66 Mich. 568, 33 N.W. 919 (1887) (overruled in Lenawee Co. Bd. of Health v. Messerly, 417 Mich. 17, 331 N.W.2d 203 (1982), ecerpledinJ. DAwsON, supra note 1, at 561, 568, amusingly labelled "Black Angus in Pensive Mood," seems like an exception to the mulish, humorless charge ofabstraction I have developed against the illustra- tions. The Black Angus seems to be the editors'joke on their own illustrations. Why is this in here except to make us laugh?
1110 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065
I have already examined the impersonal style of the casebook in my earlier discussion of the editors' use of neutral names and neutered pronouns in the casebook's problems and questions.'1 0 The neutrality of that language is consistent with other ways in which the editors maintain a distance between themselves and their casebook. The casebook lacks, for example, any significant discus- sion regarding the theoretical implications of beginning the casebook with materials on remedies.' 51 Similarly, there is no edito- rial explanation or discussion of the authors' use of the case/countercase organizational technique. 152 In addition, the edi- tors usually do not express their own views regarding the justice of the decisions, the complexity of cases, or the ethical conduct of law- yers and parties. Disembodied hands seem to have dropped the cases into doctrinal categories.
The kinds of questions the editors pose following cases illustrate the uncommitted and uncontroversial aspect of the book's neutral- ity. These questions are typically composed by modestly changing one or more facts of the preceding case, or by asking how the Uni- form Commercial Code would affect an outcome.' 55 While readers undoubtedly can benefit from addressing these kinds of questions, they would also benefit from addressing more provocative and con- troversial questions, such as those that would challenge the fairness or the coherence of decisions or which would ask about the assump- tions underlying judicial attitudes. But these questions have been neglected in this casebook.
The casebook's dry, narrow, and unprovocative editorial com- mentary also illustrates the uncontroversial aspect of the book's neutrality. For example, the legal history materials in Dawson, Har- vey, andHenderson predominantly relate to the development of legal
150.See supra notes
151.The editors' preface states:
[w]e point again to the attention given remedies for breach of
social and economic concept as it is a set of rights and duties, we continue to believe that contract law is best understood, in function and societal impact, if it is ap- proached through a
J. DAwsoN, supra note 1, at xvii. I maintain that this oblique discussion provides little infor- mation to readers regarding the editors' theory of rules or contract doctrine. Cf. F. KESSLER, supra note 88, at
152.See generallyJ. DAwsoN, supra note 1, at xix (summarizing Table of Contents).
153.See, e.g., id. at 54,67, 74 (posing questions changing facts ofpreceding cases), and ict at 242 (asking how plaintiff in preceding case would have fared under U.C.C.).
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procedures, such as the changing forms of legal actions, 154 the merger of law and equity,' 55 and the shifting roles of juries and judges.' 5 6 Some of this material helps readers understand portions of decisions that otherwise would seem mystifying,' 5 7 while some of it undoubtedly evokes a "yeah, so?" response. 5 8s The material as a whole, suggests that legal history is technical rather than lively, and that legal history does not offer contract doctrine any larger per- spective. If the editors had included several other kinds of legal his- tory in the book, readers would have a much more engaged response to the materials.
For example, despite the contributions of one of the casebook ed- itors to legal realism,' 5 9 the editors do not include any intellectual legal history in the casebook. 160 Readers, therefore, do not have ac- cess in the casebook to the relationship between the way the courts decided cases in the book and the changing perspectives in legal thought that both influenced the decisions and that the cases them- selves represent.' 6 ' Similarly, because the editors do not include economic and social history relating to the periods in which the cases were decided,' 6 2 the casebook gives readers no assistance in considering the effect of this material on the courts' decisions. 163 When the editors do depart from procedural history to include his- tory of substantive legal doctrine in the casebook, the material tends to describe the legislative or practical resolution of a contract is-
154.See
155.See id (discussing historical merger of law and equity).
156.See id at
157.See, e.g., idL at
158.See, e.g., id at
159.See Dawson, Economic
160.Llewellyn's excerpt onjudicial style is an exception to this statement. The excerpt, however, is quite slight. J. DAwsON, supranote 1, at
161.Kessler and Gilmore's casebook gives readers some sense of intellectual legal history by their extensive introduction, "Contract as a Principle of Order," and by their chapter and section titles, which indicate the relationship between the cases and moral, social, and political themes. F. KaSSLER, supranote 88, at
162.There are a few, very narrow exceptions to thise assertion. See, e.g., J. DAwsoN, supra note 1, at 56 (giving brief, apolitical description of price fixing and union organizing efforts during time of fluctuating coal prices, referred to in Missouri Furnace Co. v. Cochran, 8 F. 463 (W.D. Pa. 1881), excerpted inJ.DAwsoN, supra note 1, at 54);J. DAwsON, supra note 1, at
163.Cf M. Horwrrz, THE TwANSFOMATION OF AMERICAN LAW
1112 THE AMERICAN UNIVERSITY LAw REVIEW [Vol. 34:1065
sue.164 The editors do not present material focusing on current, heated disputes about contract doctrine. Thus, for example, although there are several cases in the casebook involving employ- ees' claims of unfair discharge, 165 the editors scatter these cases throughout the casebook and do not refer to the uncertain status of these claims or the stimulating doctrinal debate they have engendered. 166
The primary effect of the authoritarian neutrality I have described thus far is to mislead readers about the kind of questions one can ask about cases and about the kind of legal history that might be relevant to consider in studying contracts. This casebook, like many others, discourages readers from developing ethical, social, and moral opinions on legal issues. Insofar as these questions and opin- ions seem feminine, because they involve attachment, compassion, and emotion, repressing these questions encourages readers to re- press the feminine characteristics within themselves. This promotes a narrow concept of professional conduct, and it also devalues au- thentic
Although the editorial style and noncase material that the editors have written or selected for the book are enough, in my judgment, to give this casebook the authoritarian neutrality that makes it seem male, The Feminist Reader or the Reader with a Chip on her Shoul- der might also argue that by omitting legal issues of current interest to women the editors have selected cases that contribute to the casebook's "maleness." The Individualist or the Civil Libertarian Readers would staunchly contest this position. They would claim that the cases in this casebook are not gendered. Not only do the editors include "women's" issues in the casebook (there are cases
164.See, e.g., J. DAWSON, supra note 1, at
165.See, eg., Forrer v. Sears, Roebuck & Co., 36 Wis. 2d 388, 153 N.W.2d 587 (1967), exceptedinJ. DAwsON, supra note 1,at 214; Goodman v. Dicker, 169 F.2d 684 (D.C. Cir. 1948), excerpted inJ. DAWSON, supra note 1, at 217; Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), excerpted inJ.DAwsoN, supra note 1, at 254.
166.See generally Note, ProtectingEmployeesat WillAgainst WrongfulDischarge:The PublicPolicy Exception, 96 HARv. L. Ray. 1931, 1931 n.3 (1983) (citing extensive commentary on unfair employees' discharge that was available before casebook's fourth edition was published).
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involving contractual transactions within families), but the wide range of commercial contract problems they have included should be of concern to both sexes. Regardless of what's left out of the casebook, these readers would argue, what's in the book is neutral.
Although it seems obvious to me that cases can be as gendered as the editorial material I have been discussing, 16 7 this observation deeply challenges the claim of impartiality that is a traditional aspect of legal rhetoric. I have tried to show, however, in this overview of the casebook, that Dawson, Harvey, andHendersonis a gendered docu- ment. The editors' treatment of women and the "maleness" of the book's style and contents support and nourish gendered thinking within casebook readers. By reinforcing the restrictions that gen-
III.
CONTRACT DECISIONS
This section will focus on an extended discussion of two cases in Dawson, Harvey, and Henderson. While the previous section concen- trated on the impact that the gendered aspects of the casebook has on readers, this section will emphasize the impact that readers' ideas regarding gender have on their understanding of legal doctrine. By analyzing each case from feminist and nonfeminist perspectives, I want to demonstrate that
167.See supra note 89 and accompanying text. See also Olsen, The Sex of Law (1985)
(unpublished paper on file with author).
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A.Shirley MacLaine and the Mitigation of DamagesRule:
Parkerv. Twentieth
star in the film, offering her instead the role of leading actress in a "4western type" movie, "Big Country, Big Man." MacLaine did not
accept the offer. The studio opposed her motion for summary judg- ment on the grounds that her claim for lost wages in "Bloomer Girl" should be reduced by the wages she could have earned in "Big Country, Big Man." This defense is based on the general rule of mitigation of damages, elaborated for casebook readers in the pre- ceding major case: a party injured by breach of contract cannot re- cover compensation for any damages she could have avoided (or mitigated). 170 The doctrinal issue in Parker involves an employee's obligation to avoid damages after her employer has breached their employment agreement: was Shirley MacLaine's claim for compen- sation foreclosed because of the opportunity, which she refused, to avoid her loss by worling in "Big Country, Big Man?"
In deciding the case for Shirley MacLaine, the court in Parkerre- lied on the fact that, under the mitigation rule, an employee need not avoid damages by accepting "employment of a diferent or inferior kind .... "171 The majority concluded that the" 'Big Country' lead
was ... both different and inferior:"
The mere circumstance that "Bloomer Girl" was to be a musical review calling upon plaintiff's talents as a dancer as well as an ac- tress, and was to be produced in the City of Los Angeles, whereas "Big Country" was a straight dramatic role in a "Western Type" story taking place in an opal mine in Australia, demonstrates the difference in kind between the two employments; the female lead as a dramatic actress in a western style motion picture can by no
168.3 Cal. 3d 176, 474 P.2d 689, 89 Cal. Rptr. 737 (1970), excerpted inJ. DAWSON, supra note 1, at 46.
169.J. DAwsoN, supra note 1, at 46 n. *.Maclaine won an academy award in 1984 for her role in the film "Terms of Endearment."
170.In Rockingham County v. Luten Bridge Co., 35 F.2d 301 (4th Cir. 1929), excerpted in J. DAwsoN, supra note 1,at 41, a contractor was denied his claim for the full contract price of an agreement to build a bridge. The plaintiff had completed the bridge after the defendant had repudiated the contract. Id at 303, excerpted inJ. DAWSON, supra note 1, at 41, 42.
171.J. DAwsoN, supra note 1, at 49 (emphasis added). The Restatementof Contractschooses different wording, stating that "damages are not recoverable for loss that the injured party could have avoided without undue risk, burden or humiliation." REsrATEMENT (SECOND) OF CoNrTRAcTs § 350(1) (1979).
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stretch of imagination be considered the equivalent of or substan- tially similar to the lead in a song and dance production.
Additionally, the substitute "Big Country" offer proposed to
eliminate or impair the director and screenplay approvals ac- corded to plaintiff under the original "Bloomer Girl" contract 1 72
.. and thus constituted an offer of inferior employment. No ex- pertise orjudicial notice is required in order to hold that the dep- rivation or infringement of an employee's rights held under an original employment contract converts the available "other em- ployment" relied upon by the employer to mitigate damages, into inferior employment which the employee need not seek or
accept. 173
The dissenting judge, however, charged that the majority relied on a "superficial listing of differences" between the films, asserting that:
[iut is not intuitively obvious.. .that the leading female role in a dramatic motion picture is a radically different endeavor from the leading female role in a musical comedy film. Nor is it plain to me that the rather qualified rights of director and screenplay approval contained in the first contract are highly significant matters either in the entertainment industry in general or to this plaintiff in par- ticular. Certainly, none of the declarations introduced by the plaintiff in support of her motion shed any light on these issues. Nor do they attempt to explain why she declined the offer of star- ring in "Big Country, Big Man." 17 4
By calling attention to the majority opinion's conclusory application of the "different or inferior" qualification, the dissenting opinion encourages the casebook reader to feel uncertain about how to use
the mitigation rule in the employment context. It will seem unjust, to some readers, that Shirley MacLaine is apparently going to get $750,000, after this decision, for doing nothing. The mitigation rule seems to lose all of its muscle as a result of this "different or inferior" qualification. Would MacLaine have been entitled to dam- ages if she had refused the lead in "Annie Hall," because that ex- tremely successful film is not a musical? Would she have been
172.In offering MacLaine "Big Country," the studio asserted there was insufficient time to negotiate with her regarding choice of director and regarding the screenplay. The studio reminded her that she had "already expressed an interest in... 'Big Country, Big Man,' "and
although she could not have the same approval rights she would have had in "Bloomer Girl" the studio did promise to consult with her regarding the choice of director for photoplay and regarding screenplay revisions. Parker v. Twentieth
180 n.2, 474 P.2d 689, 691 n.2, 89 Cal. Rptr. 737,739 n.2 (1970), excerpted inJ. DAwsoN, supra note 1, at 46,
173.Id at
174.1& at 188, 474 P.2d at 697, 89 Cal. Rptr. at 745 (Sullivan, Acting CJ., dissenting), excerpted in J. DAwsoN, supra note 1,at 46,
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denied damages if she had turned down "Springtime for Hitler"? 175 How can you tell?
I believe The Feminist Reader and the Reader with a Chip on her Shoulder (as well as other readers who are familiar with feminist social history) might find the majority's application of the "different or inferior" standard much less mysterious than other readers. Their views would be based on their acquaintance either with Ame- lia Bloomer, a
175."Springtime for Hider" was the musical comedy created within the film "The Produ- cers" solely for the purpose of obtaining a financial loss for its originators. The producers designed the musical hoping it would be a commercial disaster. See N.Y. Times, Mar. 19, 1968, at 88, col. I (reviewing "The Producers").
176.See Fatout, Amelia Bloomer and Bloomerism, 36 THE NEw YoRK HIsT. Soc'y 9. 361, 365 (1952). For recent histories of other prominent feminists that contain references to Amelia Bloomer, see L. BANNER, EmZABErH CADY STANrON, A RADICAL FOR WOMEN'S RIGHTS 35
(1980); E. GRIFFITH, IN HER Ovm RIrHT. THE LIFE OF EuzABErH CADY STANTON
EuzABETH CADY STANTON, SUSAN B. ANTHONY, CORRESPONDENCE, WRrITNGS, SPEECHES 15 (E.
DuBois ed. 1981).
177.Although the actress's decision to reject "Big Country, Big Man" may not have been politically motivated, feminists who read the case now may identify MacLaine as a feminist and
they are likely to assume that her decision more than twenty years ago was politically moti- vated. MacLaine has written about her longstanding political activism, as well as her other interests, in several bestselling autobiographical books. See, e.g., S. MACLAINE, Our ON A LIMB (1983); and S. MACLAINE, You CAN GEFTHERE FROM HERE (1975). MacLaine has been a Civil Rights activist, a vigorous opponent of the Vietnam War, and a delegate to the Democratic National Convention. J. SPADA, SHIRLEY AND WARREN 210 (1985). In 1984, when she received an honorary degree from Hunter College, she was praised for her "support of those who champion the victims of discrimination, particularly women." Id.
178.Indeed, while the spirited campaign for bloomers was ultimately unsuccessful in re- forming women's dress of the period, it contained themes familiar to modem feminists- bloomer advocates sought to free themselves from the confines of fashion constraints which they blamed men for imposing on them. Cf. S. BROWNMILLER, FEMININrTY
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only from a western but from other musical comedies, because of its political overtones.
In contrast with their favorable attitudes toward "Bloomer Girl," The Feminist Reader as well as the Reader with a Chip on her Shoulder would probably assume that a movie entitled "Big Coun- try, Big Man" would offer a leading actress the inferior kind of lead- ing role westerns have typically offered women. Like Miss Kitty in "Gunsmoke," a woman in a western is usually very much subordinated to the main focus of such
Although these readers might not know whether "Bloomer Girl" had feminist themes179 or whether "Big Country, Big Man" por-
CHERNIN, THE OBSESSION: REFLECTIONS ON THE TYANNY OF SLENDERNESS (1981); Note, Gen-
179.It turns out that "Bloomer Girl" did have feminist themes, as Charles Knapp has pointed out in his contracts casebook. C. KNAPP, supra note 55, at 1118. My own intuitions about "Bloomer Girl" were confirmed by readingJohn Gregory Dunne's review of a book by "Danny Santiago" in the New York Review of Books last year. Dunne, The Secret of Danny Santiago (Book Review), 31 N.Y. REv. OF BooKs 17 (Aug. 16, 1984) (reviewing D. SANTIAGO, FAMous ALL OVER TOWN (1984)). "Danny Santiago" was revealed in that review to be the norn
deplune of DanJames, a Hollywood writer who was blacklisted during the fifties because of his past membership in the Communist Party. Dunne mentioned that the Broadway musical "Bloomer Girl" was based on a play thatJames and his wife Lilith
When Grandma was a lassie,
That tyrant known as man
Thought a woman's place
Was just the space
Around a frying pan.
We won the revolution
In
Who says it's nix
For us to mix
Our sex with politicsl
We've bigger seas to swim in
1118 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065
trayed women according to the usual demeaning western stereo- type,180 because of their skepticism about women's roles in westerns and their intuitions regarding "Bloomer Girl's" feminist themes, they might understand MacLaine's rejection of the "Big Country, Big Man" role in terms of their own efforts to reconcile their politics with their careers. These readers would be able to ground the lan- guage of the "different or inferior" qualification in their own lives.' 8 ' They might assume that MacLaine not only sought to re- fuse a role that would be demeaning to her as a woman, but that she also wanted to avoid contributing to the oppressed images of wo- men in popular culture. Rather than thinking that Shirley MacLaine is being paid to do nothing in Parker,and that the "different or infer- ior" qualification to the mitigation rule was unfairly applied, their attitude toward the two films could enable them to infer an ascer- tainable but complicated standard for determining when the "differ- ent or inferior" qualification should be applied in employment cases. That is, they would assume that Parker demonstrates that an employee's serious and recognized personal goals should be respected and protected when they are connected to a concern that is respected and acknowledged by others. Under this interpretation, some degree of mitigation can be required (mitigation does not lose all of its muscle in Parker), and yet a wrongly discharged employee would not have to take just any substitute employment. Money
And bigger worlds to slice.
Oh, Sisters, are we women
Or mice?
L. ENGEL, THEIR WORDS ARE Music 75 (1975). Descriptions of "Bloomer Girl" can be found in A. LAUFE, BROADWAY'S GREATESr MUSICALS
180.The court in Parkerstates that "Big Country" was a .'western type' story taking place in an opal mine in Australia." Parker v. Twentieth
181.These readers might also be able to find support for their views in other language of the majority opinion. By describing the Big Man role as a 'ftmal lead as a dramatic actress in a western style motion picture," the majority may be indicating their awareness that women are traditionally given subordinate roles in western films. Parker v. Twentieth
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would not be the only test for determining whetherjobs are compa- rable, and yet other employment objectives would require social as well as personal significance in order to be protected under the "dif- ferent or inferior" qualification.
The interpretation of Parker generated by feminist attitudes and information about the social history related to the case offers read- ers useful guidance in applying the "different or inferior" qualifica- tion to other situations. This interpretation also allows readers who identify with Shirley MacLaine (because she is a woman) to attribute dignity to her conduct. However, readers of Dawson, Harvey, and Henderson will have to struggle to interpret Parker in the manner I have described. Inexplicably, the editors omit material that would confirm readers' intuitions that the social context and political sig- nificance of the films might explain the application of the "different
or inferior" qualification in Parker.8 2 Dawson, Harvey, and Hender-
1
son thus subtly deter readers who are familiar with nineteenth cen- tury feminist activists and their work from utilizing their personal connections with the case to understand Parker; these readers may even be led to believe that social context and politics are not legiti- mate interpretive tools. Although readers' intuitions about the Parkercase may in fact explain the otherwise baffling result of this decision, the casebook does not encourage them to draw on those intuitions. It
8 3
have often found to be a source of strength. -
The negative pedagogical effect of omitting information about the feminist themes in "Bloomer Girl" extends to other readers too. Most casebook readers are unlikely to know about Amelia Bloomer or the nineteenth century feminist dress reform effort. Had Daw- son, Harvey, and Henderson included the information about "Bloomer Girl," which Charles Knapp provides in his casebook, then feminist attitudes toward the subordination of women in wes- terns and the importance of dress reform could have been tapped in other readers to develop the complicated, contextualized interpreta-
182.Well before the fourth edition of Dawson, Harvey, and Henderson was published in 1982, Charles Knapp informed his readers that MacLaine had been connected to feminist causes and that one of the characters in "Bloomer Girl" was "AmeliaJenks ('Dolly') Bloomer
... a leading advocate ofwomen's rights in the United States during the nineteenth century." C. KNAPP, supra note 55, at 1118 n.l. It is hard to believe that Dawson, Harvey, and Hender- son were unaware of this casebook scholarship.
183.See Homans, "Her Very Own How'" The Ambiguities of Representationin Recent lWomen's Fiction, 9 SIGNS:J. OF WOMEN IN CULTURE AND SocInrW 186 (1985) (describing views of French and American feminist literary critics regarding relationship between women's experiences and their interpretations and use of language).
1120 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065
don of mitigation suggested above. By failing to describe the social context of this case, the editors probably deprive many readers of an interpretation of Parker that would advance their understanding of mitigation doctrine.
Although The Feminist Reader or the Reader with a Chip on her Shoulder may pursue her intuitions about Parkerdespite the editors' silence, the editors include a photograph of the actress in the casebook which could distract many of these readers from such an understanding of the majority's result in Parker. MacLaine is pic- tured, pouting, in a fringed, lowcut cocktail dress. Her legs are crossed, a knee is bared, she's wearing
Some feminists might relish the contrast between the images of Holmes and MacLaine in that each is wearing a costume that em- phasizes the nature of its subject's
Many feminist readers, however, might find a different message in these illustrations. Comparing Holmes with MacLaine might re- mind them of the substantial disparities between the public achieve- ments of men and women. Comparing the picture of the bridge with the picture of MacLaine, these readers might assume they are being shown two "objects" in the mitigation section of the
184.J. DAWSON, supra note 1. The illustration is a photograph of the widely reproduced Charles Hopkinson portrait which hangs in the Harvard Law School.
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cant feminist concern, these two illustrations could remind feminists
that sexuality has often been a form of oppression in women's lives. Thus, MacLaine's photograph could prevent many readers from be- lieving that her refusal to accept the "Big Country, Big Man" role was motivated by her political integrity. Instead, MacLaine's photo- graph might deter them from considering Amelia Bloomer's signifi- cance to the case. How could Shirley MacLaine have stood up to the studio for feminist reasons, they might think; she's not a feminist but a "sex object."18 5
Without any clues in this casebook regarding the feminist themes of "Bloomer Girl," most Dawson, Harvey, andHenderson readers will have to find other ways to cope with their uncertainty about the meaning of the "different or inferior" qualification of the mitigation rule. In the remaining pages of this part I shall elaborate interpreta- tions of Parkerthat do not depend on social context or feminist atti- tudes in order to demonstrate how assumptions regarding gender can also be implicated in interpretations that are not overtly linked with feminism.
The breach of an individual's employment contract sharply presents a basic conflict underlying all mitigation issues. We ear- nestly want to protect the contract objectives of individual employ- ees against employer breach (they should be compensated for their losses under the contract) and yet we also abhor the idea that such employees should be excused from the communal work ethic by get- ting paid for doing nothing. The general rule of mitigation of dam- ages favors the communal pole of this conflict (one cannot recover compensation for damages that can be avoided), 8 6 while the qualifi-
185.In addition to the negative pedagogical consequences of the editors' treatment of
Parker,the choice and organization of the first three illustrations in the casebook are likely to diminish the general confidence of some feminist readers in the casebook. In so far as the photograph of MacLaine signals such readers that the editors are insensitive to the opposition many harbor to the sexual subjugation of women, these readers may be on guard after read- ing the decision in Parker against what they understand as the editors' implicit misogyny. Think of how differently these readers might view the casebook if Shirley MacLaine were pictured making a campaign appearance for George McGovern, or ifshe were shown smoking a big cigar after a theater triumph. See, e.g., J. SPADA, SHIRLEY AND WARREN 150, 164 (1985).
Adding either of these photographs would be a plausible way for Dawson, Harvey, and Hen- derson to preserve the charm that illustrations give their casebook while eliminating the nega- tive effect of the first three illustrations on a portion of their readers. (The two illustrations accompanying Chicago Coliseum Club v. Dempsey, 265 Il. App. 542 (1932), excerpted in J. DAWSON, supra note 1, at 81, the case involvingJack Dempsey's breach of contract to fight Harry Wills, suggest to me that the editors may be sensitive to the power of some of their illustrations. J. DAwsON, supra note 1, at 82, 87. The first Dempsey illustration shows Demp- sey fighting Gene Tunney, and the second show Dempsey shaking hands with Wills, a black fighter. Id Since the opinion is silent about the race of the parties, the additional photograph may alert readers to the question ofwhether race may have been a factor in Dempsey's breach of contract or in the court's decision. Id at 87.
186.As the dissentingjudge in Parker states, the basic mitigation rule "embodies notions
1122 THE AMERICAN UNIVERSrIy LAW REVIEW [Vol. 34:1065
cation to the general rule, that one need not avoid damages by ac- cepting work of a "different or inferior" kind, favors the individualist pole. Without the qualification, the mitigation rule would swallow an employee's contractual
To some readers, the conclusory application of the "different or inferior" qualification by the majority in Parkerwill seem like appro- priate, if unreasoned deference to individualism. Searching for some rational explanation of the majority's decision, they will con- clude that the directorial rights MacLaine would have lost in "Big Country, Big Man," in conjunction with the lost opportunity to ad- vance her musical comedy expertise, wouldjustify the application of the "different or inferior" qualification in this case. These readers will agree that MacLaine's autonomy deserved more protection than the general social good that would have come from not letting her off the working hook the rest of us are on.
This interpretation of the case will seem gendered to some read- ers because the individualism/community duality I have described is generally understood to be gendered. Individualism and autonomy are commonly associated with men while altruism and community are generally linked with women, just as, more concretely, men are usually expected to pursue their individualistic careers single- mindedly while women are expected to subordinate other career objectives to care for their families or to participate in community activities. 187 Readers who justify the majority's decision on the basis of an autonomy rationale are also likely to be influenced in this
of fairness and sociallyresponsible behavior which are fundamental to ourjurisprudence... it is a rule requiring reasonable conduct in commercial affairs." Parker v. Twentieth
187.Indeed, some readers may think the decision in Parkeris irrational because the sex of the victorious plaintiff is inconsistent with the gender of the legal rationale supporting the decision, while other readers will be pleased that the decision reverses the usual assumption that men's problems will be resolved with "male" rules and women's with "female" rules. The kind of analysis of the sexualization of law presented here is developed in Fran Olsen's paper "The Sex of Law." Olsen, supra note 167. While asserting that dualization occurs, Ol-
sen also criticizes this process, arguing that each pole of a duality is constitutive of the other, rather than separate and different from the other. See generally Kennedy, Form andSubstance in PrivateLaw Adjudication, 89 HARv. L. REv. 1685 (1976) (describing fundamental conflict be- tween individualism and altruism in common law and in political and economic discourse).
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FEMINIST ANALYSIS OF A CASEBOOK |
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reading by
Whatever the particular rationale underlying an interpretation of Parkerwhich justifies the majority's decision, it offers readers very little guidance for arguing future employment cases involving a mit- igation issue. The majority's conclusory opinion provides readers almost no guidance in how to make an individualist or "masculine" argument. As Judge Sullivan points out in his dissenting opinion, "there will always be differences" between two jobs, and "a superfi- cial listing of differences with no attempt to assess their significance may subvert a valuable legal doctrine." 18 8
Because this preceding reading is so unsatisfactory, I believe most readers will be inclined to assume that the majority opinion in the Parker decision is an irrational capitulation to individualism. Gen-
MacLaine's photograph will encourage other readers to treat the Parker case skeptically. Because the photograph plays on gender- related ideas about female sexuality, these readers will be reminded that men have historically been able to manage and control the power such a picture suggests in its subject. 190 These readers will be encouraged to believe that the Parkerrule can be managed and con- trolled, just as women have been.
Finally, still other readers will be encouraged to dismiss Parker's
188.Parker v. Twentieth
189.See supra notes
190.See, eg., R. ScHoLEs, Uncoding Mama The Female Body as Text, SEMITICS AND INTEPR- PRmATiON 127 (1982) (describing restrictions on female sexuality achieved through particular forms of discourse); see also Vance, PleasureandDanger:Toward a PoliticsofSexuality, in PLEASURE AND DANGER,EXPLORING FEMALE SEXUALITY
1124 THE AmmRICAN UNiVERsrrz LAw REVIEW [Vol. 34:1065
significance because of the customary disposition in our culture to devalue any kind of women's work. These readers may be dubious at the outset of the opinion about whether acting is real work, and MacLaine's sex19 1 will foster their belief that real employees doing real work will not be treated like MacLaine.1 92
Each of these
The dismissive reading of the case tempts instructors and stu- dents to ridicule MacLaine, to imagine her as an indulged starlet lying around eating chocolates, while the defendants, hard working studio types, struggle to manage their business efficiently despite her arbitrary whims. Some readers may be proud that MacLaine is a woman who manages to "beat the system" by getting paid for doing nothing, but other readers may internalize any disrespect that they think the opinion generates for MacLaine. If these readers believe that women are morally superior to men (and some readers will hold this opinion), they will be shamed if MacLaine, as a woman plaintiff, seems successful because she cleverly manipulated the legal system. In contrast, the misogynist feelings of readers who are undisposed to favor women will be intensified by any derogation of MacLaine; women are just as bad as these readers have always sup- posed. A distinct advantage of the Parkerreading based on feminist attitudes toward the social history implicated by the case is that this interpretation will challenge the effect dismissive readings would have on readers; it will encourage feminist as well as nonfeminist readers to rethink their ideas about women.
I am not immune to the diversion Parker offers from standard
191.Readers might also disparage the value ofa male actor's work, but that attitude too would probably be affected by the
of work.
192.A footnote in the dissenting opinion, which informs readers that the mitigation rule "may have had its origin in the bourgeois fear of resubmergence in lower economic classes," may influence readers to adopt the kind of class bias analysis suggested here as an explanation for MacLaine's victory in the case. Parker v. Twentieth
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FEMINIST ANALYSIS OF A CASEBOOK |
1125 |
commercial contracts reading. It's fun to talk about the movies. My objective has not been to spoil the fun, but to illuminate some of its darkness. Indeed, Parkerwould be a good case with which to intro- duce feminist themes into the classroom: as I have argued, feminist attitudes improve its pedagogical usefulness. An interpretation of Parker that acknowledges and utilizes feminist attitudes is valuable because it challenges the lessons readers learn from cases such as Jackson v. Seymour' 93 and Fitzpatrickv. Michael'9 4 that
Understanding MacLaine as a powerful actress whose feminist politics are respected by the California Supreme Court could also stimulate readers to draw connections between social contexts and legal decisions, between the experiences of parties in a case and the experiences of readers themselves. Although these interactions are not unique to feminism, they are similar to the skills of "deep read- ing" many women claim as part of their gendered heritage. Recog- nizing the value of such skills will affirm, for some readers, an attribute they identify as feminine. Because "women's" attributes are so often less valued than "men's," affirming a "feminine" attri- bute through an analysis of Parkerwill contribute to the release of
B.Allied Van Lines, Inc.: Exposing the Power Issue in StandardForm ContractDoctrine
5
Allied Van Lines, Inc. v. Bratton,19 introduces Dawson, Harvey, and Henderson's five case unit on standard form contract doctrine. 19 r The decision involves companion cases brought against a national moving company by two
193.See supra notes
194.See supra notes
195.351 So. 2d 344 (Fla. 1977), excerptedinJ. DAwsoN, supra note 1, at 448.
196.The other four major cases in the unit are Woodburn v. Northwestern Bell Tele- phone Co., 275 N.W.2d 403 (Iowa 1979), excerpted inj.DAWsoN, supranote 1, at 476; Ellsworth
Dobbs, Inc. v.Johnson, 50 NJ. 528, 236 A.2d 843 (1967), excerpted inJ. DAwsoN, supranote 1, at 469; Henningsen v. Bloomfield Motors, Inc., 32 NJ. 358, 161 A.2d 69 (1960), excerpted inJ. DAwsoN, supra note 1, at 461; Weisz v.
N.Y.S.2d 576 (N.Y. Civ. Ct. 1971), rev'4 77 Misc. 2d 80, 351 N.Y.S.2d 911 (N.Y. App. Term.
1974), excerpted in J. DAwsoN, supra note 1, at 453.
1126 THE AMERICAN UNIVERsrrY LAw REVIEw [Vol. 34:1065
they had not actually read or agreed to the terms. The court in Al- lied rejected Mrs. Bratton's argument; it disregarded her ignorance of the restrictive terms in the carrier's bill of lading and held that her signature was sufficient to bind her to the agreement. In con- trast, the court held that Mrs. McKnab's signature did not bind her. The carrier's agent had advised Mrs. McKnab incorrectly that the agreement gave her no choice regarding the amount of insurance coverage available to her. This misstatement, the court held, re- lieved Mrs. McKnab of the presumption of assent that her signature on the agreement would otherwise have warranted. By granting re- lief to Mrs. McKnab, Allied indicates to readers that standardized agreements need not always be binding. In denying relief to Mrs. Bratton, however, the court in Allied demonstrates that standardized agreements are often enforceable.
Allied is the only case in this unit in which a court enforces a stan- dardized agreement against a party.19 7 Therefore, as a result of its introductory position in the unit and its unique support of a stan- dard form contract, Allied has a substantial impact on readers' views about standard form contract doctrine. I believe that because read- ers' ideas regarding gender affect their interpretation ofAllied, these ideas influence their subsequent approach to standardized contract interpretation. In the part that follows, I will discuss two different interpretations ofAllied that demonstrate these claims about the sig- nificance of gender. The first interpretation, which I call a tradi- tional reading of the case, is an elaboration of the rationale the court presents in support of its decision. Readers who interpret Allied in the traditional manner are unlikely to acknowledge that
The traditional interpretation of Allied leads to a conclusion that, by and large, standardized contracts are legitimate, fair, and benign.
197.In Wdsz, Henningsen, andEllsworthDobb, the challenged provisions were not enforced. Ellsworth Dobbs, Inc. v.Johnson, 50 N.J. 528, 236 A.2d 843, 858 (1967), excerpted inJ. DAw- soN, supra note I, at 469, 474; Henningsen v. Bloomfield Motors, Inc., 32 NJ. 358, 408, 417, 461 A.2d 69, 97, 102 (1960), excerpted inJ. DAwsom, supra note 1, at 461,467; Weisz v. Parke- Bernet Galleries, Inc., 67 Misc. 2d 1077,
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Several aspects of the decision invite this favorable view. Thus, for example, the court frames the question of standardized contract en- forceability as an issue ofwhether the individual householders agreed to the standardized terms.1 9s By discussing the legitimacy of the agreements in the language of assent, the court implies that individ- ual householders have the ability to avoid the severity of the terms of standardized contracts if they simply adequately assert them- selves. Mrs. Bratton "realized that she was signing a contract,"' 99 the decision reports. Moreover, the carrier's agent did not "pre- vent" her from reading the document.2 00 She "simply did not read
.. or even ask questions about the Bill of Lading." 20 1 The court indicates that, because Mrs. Bratton deliberately chose both to sign the documents and not to read them, she voluntarily relinquished her ight to judicial protection against the harshness of the stan- dardized form. She, not the carrier or the court, is responsible for her inability to obtain relief from the onerous terms in the standard- ized agreement.
The particular form of standardized agreement at issue in the case contributes to the view that Mrs. Bratton should be held responsible for her own loss. Unlike many standardized contracts (including those in the cases following Allied in the casebook), the standardized documents Mrs. Bratton failed to read actually offered her the
choice of more insurance if she wanted it.202 Mrs. Bratton was not
stuck with a form document that offered her only one set of terms. Traditional readers are more likely, therefore, to feel critical of Mrs. Bratton's conduct than to feel critical of standardized agreements.
198.Although the decision reports that the jury at trial considered both mistake and as- sent in reaching its verdict for Mrs. Bratton, mistake is not discussed in the appellate opinion. Allied Van Lines, Inc. v. Bratton, 351 So.2d 344,
Kessler, Contracts of
630 (1943).
199.Allied Van Lines, Inc. v. Bratton, 351 So.2d 344, 346 (Fla. 1977), excerpted inj. DAW-
SON, supra note 1, at 448, 449.
200.Id at 346, excerpted inJ. DAwsoN, supranote 1, at 448, 449.
201.rd at 348, excerpted inJ. DAWSON, supra note 1, at 448, 451.
202.The Bill of Lading reproduced in the decision provided:
Unless the shipper expressly releases the shipment to a value of 60 cents per pound
per article, the carrier's maximum liability for loss and damage shall be either the lump sum value declared by the shipper or an amount equal to $1.25 for each pound
ofweight in the shipment, whichever is greater. The shipment will move subject to
the rules and conditions of the carrier's tariff. Shipper hereby releases the entire
shipment to a value not exceeding. . . Notice, the shipper signing this contract
must insert in the space above, in his own handwriting either his declaration of the actual value of the shipment, or the words "60 cents per pound per article." Other-
wise, the shipment will be deemed released to a maximum value equal to $1.25 times
the weight of the shipment in pounds.
Id. at 346, excerpted in J. DAwSON, supra note 1, at 448,
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The contrast between the court's treatment of Mrs. McKnab and Mrs. Bratton also conveys the benign nature of standardized agree- ments to traditional readers. The rationale that locked Mrs. Bratton into her agreement protected Mrs. McKnab. Although the court seemed ready to hold Mrs. McKnab responsible for her signature-
she too "knew" she was "signing a contract" 20 3
The form of legal analysis that the court utilized in Allied also le- gitimates, for traditional readers, the legal doctrine dealing with standardized agreements. Because the court judged the enforce- ability of Mrs. Bratton's agreement by her signature, rather than by an examination of her actual knowledge of the contents of the stan- dard form, the Allied court seems scrupulously neutral and objective. Unlike later cases in the standardized agreement unit, the court in Allied did not inquire into inequality of bargaining power to deter-
203.IR. at 348, excerpted inJ. DAWSON, supra note 1, at 448,451.
204.Id
205."Mrs. McKnab's situation is different [from Mrs. Bratton's] ... for she sought infor- mation [and] was misled by the carrier's agent as to available coverage." Id at 348, excerptedin J.DAwsON, supranote 1, at 448, 451. In addition, the court cites portions of the trial transcript in which Mrs. McKnab testified about her conversation with the agent in which she inquired about insurance. Id at 347 nn.
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mine the enforceability of the standardized agreements. 206 Nor did it consider the justice of permitting a national moving company to limit its liability for loss of an individual householder's belongings. By avoiding these approaches, the court in Allied also avoided the troublesome question of whether setting aside standardized agree-
ments violates the principle ofjudicial neutrality regarding the sub- stance of contracts. Its silence on these issues enhances the apparent defensibility of its decision.
All of the justifications for the Allied decision advanced so far are reinforced by
Dawson, Harvey, and Henderson's overall use of cases involving women is another
tracts, but four of the five cases in this unit involve women plain- tiffs. 20 8 The unusually high number of women connected with
206.Inequality of bargaining power is discussed in Ellsworth Dobbs, Inc. v.Johnson, 50
NJ. 528,
(1960), excerpted inJ.DAwsoN, supra note 1, at 461,
207.Recent feminist scholarship has addressed the distinctions between male and female notions of personhood. See, e.g., N. CHODOROW, supra note 3; C. GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN'S DEVELOPMENr (1982). Feminist legal scholars are beginning to use this scholarship in their work. See, eg., Dalton, Remarks on Personhood, AALS panel (Jan. 5, 1985) (unpublished manuscript on file with author); Salter, Extended Identity, A Feminist Intuition of Self/Other and Its Implications for Theories ofJustice and Rights (1984) (unpublished manuscript on file with author).
208.Woodburn v. Northwestern Bell Telephone Co., 275 N.W.2d 403 (Iowa 1979), ex- cerptled in J. DAWSON, supra note 1, at 476, is the only major case in the unit on standardized
contracts, in which a woman is not a party.
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standardized contract cases209 invites readers to analogize the status of these cases to the status of women in society. Women are victim- ized by standardized agreements in these cases, just as they are so- cially and economically subordinated to men and their concerns. But they are also protected and cared for by the application of stan- dardized contract doctrine in the cases following Allied. Because the traditional reader may believe that standardized contract doctrine protects women more than people are generally protected in most aspects of life, this decision will have set this reader up to treat stan- dardized contracts as a normal, acceptable part of modern commer- cial life. He may discount the extent to which such contracts can lead individuals who use them to treat one another as if they are as standardized as their documents. Although all of the cases suc- ceeding Allied refuse to enforce standardized contract terms, these cases will be unlikely to change this reader's view that standardized contracts should, in a man's world, be generally
The feminist reading ofAllied leads to a conclusion that standard- ized contracts can be oppressive and
209.Recall that 39 of the 183 major cases in the casebook involve women parties, in con- trast to four out of five in this unit. See supranotes
210.It is interesting to note that other contracts casebooks also begin standard form con- tract units with cases involving women. See, e.g., O'Callaghan v. Waller & Beckwith Realty Co., 15 Ill. 2d 436, 155 N.E.2d 545 (1958), exerpted in E. FARNSWORTH, supra note 143, at 442; L'Estrange v. Graucob, Ltd., 2 K.B. 394 (1934), excerpted in F. KESSLER, supra note 88, at 1075.
211.The female reader with a Chip on her Shoulder, thinking, perhaps, in her paranoid mode, may be alerted to gender messages in theAllied decision by the quotation marks placed around the word "shipper" whenever it is used next to the names of the plaintiffs in the decision. While quotation marks could indicate someone else's words are being used, or while they might reflect the stylistic custom of using quotation marks to identify a person by his role, these plausible explanations for the use of quotation marks in Allied fail. There is nothing in the text to suggest the quotation marks note a quotation, and since the opinion writer does not use quotation marks when the word "carrier" is placed next to the defendant's
name, it is unlikely that the quotation marks around the word "shipper" represent customary usage. Moreover, the diligent reader who looked beyond the text would learn that other cases involving householders which are cited in the opinion do not use quotation marks when refer- ring to those parties as shippers. See Brannon v. Smith Dray Line & Storage Co., 456 F.2d 260 (6th Cir. 1972), noted in J. DAWSON, supra note 1, at
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to oppress mainly women, these readers will doubt whether the law
adequately protects women.
The
As the feminist reading of Allied implies, the court's analysis in Allied might have been different if the court had valued feminine as well as masculine personality traits. The court could have consid- ered whether Mrs. Bratton's agent should have extended more sen- sitivity and compassion to her by understanding her sympathy for him and his men, by informing her about the insurance option, and by preventing her from signing without indicating the liability cover- age she wanted. The court could have considered whether the
wink in Allied might simply indicate sympathy for the parties, some readers are likely to as- sume instead that the judge is communicating his view that since these shippers are women, and probably only housewives or widows, they are not shippers as someone in the public world understands the term. If the traditional readers who are undisposed to favor women notice the quotation marks, they will be assured that they are correct in their opinion that Mrs. Bratton, rather than the carrier or the court, is at fault in AIied.
212.Allied Van Lines, Inc. v. Bratton, 351 So.2d 344, 346 n.3 (Fla. 1977), excerpted inJ. DAwsoN, supra note 1, at 448, 449 n.2.
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agent should have been as solicitous of Mrs. Bratton as she was of him.
Just as the traditional reader's interpretation of Allied could lead him to overlook the critique of standardized contract doctrine, the feminist reader's desire to criticize Allied may lead her to exaggerate the doctrinal significance of the succeeding cases. Because she be- lieves that the decision affecting Mrs. Bratton was wrong, the femi- nist reader will look for ways to overturn standardized agreements in the cases following Allied. Her lack of confidence in the Allied ra- tionale may prevent her from believing that standardized contracts are generally enforceable; she may believe that standardized con- tract doctrine is much more indeterminate and uncertain than it is. 2 15 She is likely to undervalue the Allied opinion as a useful source of persuasive arguments in favor of enforcing standardized agreements.
Although both the traditional and the feminist readers will be dis- advantaged in their later reading of the standardized contract mate- rial if they are not exposed to alternative readings of Allied, the feminist reading is less likely to receive attention. It is, therefore, particularly important to emphasize how this reading will benefit traditional readers. A feminist reading will help these readers see the legal issue in standardized contract situations not as a question of assent but as a question of power.214 The court in Allied utilized individual consent as the exclusive standard by which to evaluate contract enforceability. The court assumed, in justifying this stan- dard, that individuals could make informed judgments about the wisdom of contracts, that they could obtain full access to all the knowledge they need to exercise their consent wisely. Indeed, the Restatement section on standardized agreements, which Dawson, Harvey, and Henderson reproduce at the conclusion of the stan- dardized agreement unit, emphasizes the knowledge of the parties
as the critical factor for determining when such agreements should be enforced.21 5
213.See generally Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 Hav. L. REV. 1173 (1983) (expansive description and criticism ofpast and current presumption that stan- dardized agreements are enforceable).
214.I am not referring here to the inequality of bargaining power argument which often surfaces in standardized agreement cases. See supra note 206 (referring to bargaining power);
see also Kennedy, supra note 72, at
215.The emphasis on knowledge occurs in the third subsection ofsection 221. RESTATE-
MENT (SECOND) OF ComTRAcrs, § 221(3) (1979), reprintedinJ. DAWSON, supra note 1, at 479.
Section 211. Standardized Agreements
(1)Except as stated in Subsection (3), where a party to an agreement signs or other- wise manifests assent to a writing and has reason to believe that like writings are
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The feminist reader of Allied, who is sensitive to the subordinate status of women, would challenge this single minded focus on a con- sumer's obligation to inform herself about her contracts as mislead- ing. The focus on knowledge masks the power exercised in contractual dealings. Mrs. Bratton's agent exercised power over her through his physical control over her bill of lading and through his familiarity, derived from prior experience, with its contents. But be- cause he was a man, the agent also had power over Mrs. Bratton that she, as a woman, was socialized to acknowledge. By requiring Mrs. Bratton to assume full responsibility for informing herself about her bill of lading, the Allied court not only required her to challenge the agent's control over what she needed to know about the bill of lad- ing, but also to challenge the control he as a man had over her as a woman.
A feminist reading of Allied exposes these forms of power.21 6 Moreover, it reveals that traditional contract doctrine, by treating the parties as if they had an adversarial relationship, implicitly re- jects the more cooperative way in which many women have tradi- tionally experienced power and knowledge. The major form of power available to most women, given the kind of work they have done, has been the power to nurture and share. Women primarily occupied with family responsibilities have learned to live in the con- text of relationships that are trusting and interdependent. In this sphere, many women do not respect or adhere to the traditional male view of power as force, authority, and domination. Given the concern she stated she felt for the workers, Mrs. Bratton earned her own
By analyzing Mrs. Bratton's claim as a question of whether she
regularly used to embody terms of agreements of the same type, he adopts the writ- ing as an integrated agreement with respect to the terms included in the writing.
(2)Such a writing is interpreted whenever reasonable is treating alike all those simi- larly situated without regard to their knowledge or understanding of the standard terms of the writing.
(3)Where the other party has reason to believe that the party manifesting such as- sent would not do so if he knew that the writing contained a particular term, the term is not part of the agreement.
Id. § 221, re Yinted inJ.DAwsoN, supra note 1, at
216.Other analyses of standardized contracts also raise the issue of power in such con- tracts. See, eg., Kessler, supra note 198, at 640.
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agreed to the challenged terms, the Allied court sought to have Mrs.
Bratton act
ply deny the extent of the agent's power over Mrs. Bratton; it also prevents her from being able to exercise power in her own way. Thus the act of framing the Allied issue in terms of assent is itself a form of power over Mrs. Bratton and others like her. Mrs. Bratton cannot adequately defend herself as long as the standardized con- tract issue is discussed as it is in Allied. Feminist readers, because of their
A feminist reading of the decision reveals the aspects of the Allied opinion that foster traditional ideas about
My aim in the casebook overview was to demonstrate the influ- ence of
217.See generally M. FOUcAULT, .supra note 2; see also G. Frug, The Language ofPower (Book Review), 84 COLUM. L. REV. 1881 (1984) (reviewing B. ACKERMAN, RECONSTRUCTING AMERI-
CAN LAw (1984)).
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IV. CONCLUDING DISCUSSION
I hope that my
Because other casebooks, as I have implied, could be subject to the analysis I have applied to Dawson, Harvey, and Henderson in this Essay, I think it would be unrealistic and unfair to advocate aban- doning this casebook on the grounds of my discussion. I would like instructors and casebook editors to undertake major efforts to mod- ify the importance gender plays in classroom materials, but I recog- nize that for many reasons most of us do not want to junk the bulk of the traditional materials we presently use in teaching. The ques-
tion most of us face, therefore, is what changes my
My aim in the preceding sections has been to indicate the power and authority that law casebooks have over their readers. At the same time, I have suggested that because of the wide variety of atti- tudes and ideas that casebook readers have about gender, readers interpret casebook material (and casebooks affect readers) differ- ently and with varying intensity. The dialectical nature of the rela- tionship between the casebook and readers is replicated in the relationship between students and an instructor who seeks to intro- duce a feminist casebook analysis into the classroom. Let me illus- trate the student aspect of this relationship by considering a class discussion concerning the significance of Shirley MacLaine's photograph.2 18
218.See supra notes
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Students will come to class with different attitudes toward this
photograph. Some readers, such as The Feminist, the
If an instructor believes that the editors' use of MacLaine's photo- graph is degrading to women, she may seek to mitigate the effect of the photography by criticizing the editors in class for including the illustration in their book. Her criticism would probably offend read- ers who believe the photograph communicates a positive image about women, and it might embarrass other readers who resent hav- ing their need for reassurance that sexism is unacceptable recog- nized. There is also a danger that the anger of Readers with Chips on their Shoulders might erupt during such a discussion and inter- fere with the instructor's control over the assuring, defusing message she seeks to convey.
The instructor would fare no better if she used the photograph, as I did in the Parker case analysis, to discuss the effect of gender on one's interpretation of the Parker decision. Many students, like the Individualist or the Civil Libertarian readers, do not acknowledge the power of gender over their ideas. They would come to class
instructors could utilize in class in order to challenge the gendered stance of Dawson, Harvey, andHenderson. In addition to discussing some of the observations presented here, instructors could also add material to the casebook that would challenge the links the casebook makes between gender and the law. By adding material to the course of special interest to women, instructors could challenge the restricted idea that contracts courses are limited to tradition. ally "masculine" interests.
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without any position at all about MacLaine's photograph. Failing to mention the problems of gender would leave the arrogance or the isolation of these readers undisturbed, permitting them either to embrace the gendered messages of the photograph or to remain ig- norant of other readers' distress. However, a serious discussion of the photograph might cause these students to see their instructor as a zealot; the discussion might reduce their confidence in her as a reliable teacher. "She has no sense of proportion," they might say. "She gets off the track." Thus, the different attitudes students have regarding gender will affect the treatment a feminist analysis of casebook materials receives in class.
Ideas relating to gender will also affect the way in which instruc- tors determine how a feminist analysis should affect their treatment of Dawson, Harvey, andHenderson in class. In my contracts course, for example, I am willing to introduce those parts of this Essay that re- late to the relationship between gender and how students under- stand cases, but I seem reluctant to discuss how the casebook affects students' views of themselves and of gender roles.2 1 9 I thus subordinate the deep pleasure and appreciation many students would derive from having their intuitive responses to the casebook legitimated to my concerns about the negative reactions of other students. I succumb to the position I have disputed in this Essay that doctrinal instruction can be isolated from students' views of themselves.
My reluctance to fully pursue this Essay's ideas in my classroom is a gendered reaction. Like many women law teachers, I am suspi- cious of the authority and power that students are accustomed to extending to instructors. 22 0 Because students expect me and I ex- pect myself to be more conciliatory, more deferential, and more un- derstanding than male teachers, I am reluctant to exploit my power in the classroom by introducing some of this controversial material into class.
I am also reluctant to completely incorporate a feminist casebook
219.For example, my class discussions of Parker v. Twentieth
220.See Pickard, Experience as Teacher. Discoveringthe Politics ofLaw Teaching, 33 U. OF To- rocro LJ. 279 (1983) (criticizing effect of such power and authority on students). See also D.
KENNEDY, LEGAL EDUCATION AND THE REPRODUCTION OF HIERARCHY
1138 THE AMERICAN UNIVERSrrY LAW REVIEW [Vol. 34:1065
analysis in class because the analysis is not only radically different from traditional classroom discussion but also closely related to my identity as a woman. Having been educated exclusively by men in the law schools I attended and having taught on predominantly male faculties, I link traditional classroom discussion with men. In order to pursue feminist material in class, I must struggle against the customary deference I have been socialized to extend to men. Challenging the restrictions my own ideas about gender impose on me is an effort I cannot always make.
Because one's own attitudes about gender affect what one be- lieves is acceptable in the classroom and because one's views of what is acceptable in the classroom affect one's attitudes toward gender, any decisions regarding the classroom implications of this Essay must be personal and contextualized, as my own decision has been. Faithfully replicating the analysis set forth in this Essay is unlikely to be a useful way for anyone, even me, to challenge the influence of gender in class discussions of Dawson, Harvey, and Henderson. The variety of
My discussion of the classroom implications of this Essay suggests that I am unlikely to claim that one can simply "apply" the analysis in this Essay to other casebooks. Indeed, I want to caution readers not to freeze this analysis into a rigid, prescriptive, analytical
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acteristics of casebooks, determining through this effort the poten- tial a casebook has to foster some traits within readers at the expense of others. Using the techniques described above, I deter- mined in the casebook overview and case analyses sections that Daw- son, Harvey, and Henderson favors masculine interests and masculine characteristics. This stance not only divides and limits readers' views about people, but it also divides and limits readers' views about the law. I believe these conclusions are significant and should prove il- luminating to readers of this casebook.
But the method I have used to reach these conclusions poses problems for extending my analysis to other casebooks. As I ac- knowledged earlier,221 challenging gender constraints requires us- ing the
I believe the gendered stance of my own reading in the casebook overview section was essential to my ability to demonstrate the influ- ence of gender in the casebook. Describing examples of gender constraints enabled me to portray concretely how readers connect their sex and their views of law and how the casebook affects read- ers' views of themselves. However, literally applying my analysis of the
221.See supra notes
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sciousnesses, but other aspects should be transformed in order to achieve the same objective.
A feminist analysis of Dawson, Harvey, and Henderson can be suc- cessful not by being "applied" to other legal writing but by generat- ing other